1992)"

KJ^VKl-^/ 7 m /' d /'

The
^fORTH CAROLINA

IN THIS ISSUE

GENERAL STATUTES

IN ADDITION

Final Decision Letter

PROPOSED RULES
Agriculture

Environment, Health, and Natural Resources
Human Resources
Medical Examiners, Board of

RRC OBJECTIONS

RULES INVALIDATED BY JUDICIAL DECISION

CONTESTED CASE DECISIONS
ISSUE DATE: October 1, 1992
Volume 7 • Issue 13 • Pages 1254-1350

RECEIVED

OCT s 1992
LAW LIBRARY

INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE

NORTH CAROLINA REGISTER

TEMPORARY RULES

The North Carolina Register is published twice a month and
contains information relating to agency, executive, legislative and
judicial actions required by or affecting Chapter 150B of the
General Statutes. All proposed administrative rules and notices of
public hearings filed under G.S. 150B-21.2 must be published in
the Register. The Register will typically comprise approximately
fifty pages per issue of legal text.

State law requires that a copy of each issue be provided free of
charge to each county in the state and to various state officials and
institutions.

The North Carolina Register is available by yearly subscription
at a cost of one hundred and five dollars (S105.00) for 24 issues.
Individual issues may be purchased for eight dollars (S8.00).

Requests for subscription to the North Carolina Register should
be directed to the Office of Administrative Hearings,
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447.

Under certain emergency conditions, agencies may issue
temporary rules. Within 24 hours of submission to OAH, the
Codifier of Rules must review the agency's written statement of
findings of need for the temporary rule pursuant to the provisions in
G.S. 150B-21.1. If the Codifier determines that the findings meet
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If
the Codifier determines that the findings do not meet the criteria,
the rule is returned to the agency. The agency may supplement its
findings and resubmit the temporary rule for an additional review
or the agency may respond that it will remain with its initial
position. The Codifier, thereafter, will enter the rule into the
NCAC. A temporary rule becomes effective either when the
Codifier of Rules enters the rule in the Code or on the sixth
business day after the agency resubmits the rule without change.
The temporary rule is in effect for the period specified in the rule or
180 days, whichever is less. An agency adopting a temporary rule
must begin rule-making procedures on the permanent rule at the
same time the temporary rule is filed with the Codifier.

ADOPTION AMENDMENT, AND REPEAL OF
RULES

NORTH CAROLINA ADMINISTRATIVE CODE

The following is a generalized statement of the procedures to be
followed for an agency to adopt, amend, or repeal a rule. For the
specific statutory authority, please consult Article 2A of Chapter
150B of the General Statutes.

Any agency intending to adopt, amend, or repeal a rule must
first publish notice of the proposed action in the North Carolina
Register. The notice must include the time and place of the public
hearing (or instructions on how a member of the public may request
a hearing); a statement of procedure for public comments; the text
of the proposed rule or the statement of subject matter; the reason
for the proposed action; a reference to the statutory authority for the
action and the proposed effective date.

Unless a specific statute provides otherwise, at least 15 days
must elapse following publication of the notice in the North
Carolina Register before the agency may conduct the public
hearing and at least 30 days must elapse before the agency can take
action on the proposed rule. An agency may not adopt a rule that
differs substantially from the proposed form published as part of
the public notice, until the adopted version has been published in
the North Carolina Register for an additional 30 day comment
period.

When final action is taken, the promulgating agency must file
the rule with the Rules Review Commission (RRC). After approval
by RRC, the adopted rule is filed with the Office of Administrative
Hearings (OAH).

A rule or amended rule generally becomes effective 5 business
days after the rule is filed with the Office of Administrative
Hearings for publication in the North Carolina Administrative Code
(NCAC).

Proposed action on rules may be withdrawn by the promulgating
agency at any time before final action is taken by the agency or
before filing with OAH for publication in the NCAC.

The North Carolina Administrative Code (NCAC) is a
compilation and index of the administrative rules of 25 state
agencies and 38 occupational licensing boards. The NCAC
comprises approximately 15,000 letter size, single spaced pages of
material of which approximately 35% of is changed annually.
Compilation and publication of the NCAC is mandated by G.S.
150B-21.18.

The Code is divided into Titles and Chapters. Each state agency
is assigned a separate title which is further broken down by
chapters. Title 21 is designated for occupational licensing boards.

The NCAC is available in two formats.

(1) Single pages may be obtained at a minimum cost of
two dollars and 50 cents (S2.50) for 10 pages or less,
plus fifteen cents (SO. 15) per each additional page.

(2) The full publication consists of 53 volumes, totaling in
excess of 15,000 pages. It is supplemented monthly
with replacement pages. A one year subscription to the
full publication including supplements can be
purchased for seven hundred and fifty dollars
(S750.00). Individual volumes may also be purchased
with supplement service. Renewal subscriptions for
supplements to the initial publication are available.

Requests for pages of rules or volumes of the NCAC should be
directed to the Office of Administrative Hearings.

CITATION TO THE NORTH CAROLINA
REGISTER

The North Carolina Register is cited by volume, issue, page
number and date. 1:1 NCR 101-201, April 1, 1986 refers to
Volume 1, Issue 1, pages 101 through 201 of the North Carolina
Register issued on April 1, 1986.

FOR INFORMATION

CONTACT

Office

Administrative Hearings,

ATTN: Ru

Division,

P.O.

Drawer 27447, Raleigh, North Carolina

27611-7447,

(919)

733-2678.

NORTH
CAROLINA
REGISTER

Office of Administrative Hearings

P. O. Drawer 27447

Raleigh, North Carolina 27611-7447

(919) 733-2678

Julian Mann III,

Director
James R. Scarcella Sr.,

Deputy Director
Molly Masich,

Director of APA Services

Staff:

Ruby Creech,

Publications Coordinator
Teresa Kilpatrick,

Editorial Assistant
Jean Shirley,

Editorial Assistant

ISSUE CONTENTS

I. GENERAL STATUTES

Chapter 150B 1254

II. IN ADDITION

Final Decision Letter 1275

III. PROPOSED RULES
Agriculture

Pesticide Board 1276

Environment, Health, and
Natural Resources

Wildlife Resources Commission 1299

Human Resources

Medical Assistance 1295

Mental Health, Developmental
Disabilities and Substance Abuse
Services 1276

Licensing Board
Medical Examiners, Board of . . 1304

IV. RRC OBJECTIONS 1309

V. RULES INVALIDATED BY

JUDICIAL DECISION 1313

VI. CONTESTED CASE DECISIONS

Index to ALJ Decisions 1314

Text of Selected Decisions

90 EHR 0415 1326

92 EDC 0023 1333

VII. CUMULATIVE INDEX 1348

NORTH CAROLINA REGISTER

Publication Schedule

(August 1992 - December 1993)

Last Day

Earliest

for Elec-

Date for

Last Day

*Earliest

Issue

Last Day

tronic

Public

Adoption

to Submit

Effective

Date

for Filing

Filing

Hearing

by Agency

to RRC

Date

tikdkzk&iksksk

;k :■: sksk ^< :»; :*<

*******

aje^t^c^e^cjjesjc

tjc3fc;joje:{o{c3{e

^< :■< :■< ^c ^« ^e ^

08/03/92

07/13/92

07/20/92

08/18/92

09/02/92

09/20/92

11/02/92

08/14/92

07/24/92

07/31/92

08/29/92

09/13/92

09/20/92

11/02/92

09/01/92

08/11/92

08/18/92

09/16/92

10/01/92

10/20/92

12/01/92

09/15/92

08/25/92

09/01/92

09/30/92

10/15/92

10/20/92

12/01/92

10/01/92

09/10/92

09/17/92

10/16/92

10/31/92

11/20/92

01/04/93

10/15/92

09/24/92

10/01/92

10/30/92

11/14/92

11/20/92

01/04/93

11/02/92

10/12/92

10/19/92

11/17/92

12/02/92

12/20/92

02/01/93

11/16/92

10/23/92

10/30/92

12/01/92

12/16/92

12/20/92

02/01/93

12/01/92

11/06/92

11/13/92

12/16/92

12/31/92

01/20/93

03/01/93

12/15/92

11/24/92

12/01/92

12/30/92

01/14/93

01/20/93

03/01/93

01/04/93

12/09/92

12/16/92

01/19/93

02/03/93

02/20/93

04/01/93

01/15/93

12/22/92

12/31/92

01/30/93

02/14/93

02/20/93

04/01/93

02/01/93

01/08/93

01/15/93

02/16/93

03/03/93

03/20/93

05/03/93

02/15/93

01/25/93

02/01/93

03/02/93

03/17/93

03/20/93

05/03/93

03/01/93

02/08/93

02/15/93

03/16/93

03/31/93

04/20/93

06/01/93

03/15/93

02/22/93

03/01/93

03/30/93

04/14/93

04/20/93

06/01/93

04/01/93

03/11/93

03/18/93

04/16/93

05/01/93

05/20/93

07/01/93

04/15/93

03/24/93

03/31/93

04/30/93

05/15/93

05/20/93

07/01/93

05/03/93

04/12/93

04/19/93

05/18/93

06/02/93

06/20/93

08/02/93

05/14/93

04/23/93

04/30/93

05/29/93

06/13/93

06/20/93

08/02/93

06/01/93

05/10/93

05/17/93

06/16/93

07/01/93

07/20/93

09/01/93

06/15/93

05/24/93

06/01/93

06/30/93

07/15/93

07/20/93

09/01/03

07/01/93

06/10/93

06/17/93

07/16/93

07/31/93

08/20/93

10/01/93

07/15/93

06/23/93

06/30/93

07/30/93

08/14/93

08/20/93

10/01/93

08/02/93

07/12/93

07/19/93

08/17/93

09/01/93

09/20/93

11/01/93

08/16/93

07/26/93

08/02/93

08/31/93

09/15/93

09/20/93

11/01/93

09/01/93

08/11/93

08/18/93

09/16/93

10/01/93

10/20/93

12/01/93

09/15/93

08/24/93

08/31/93

09/30/93

10/15/93

10/20/93

12/01/93

10/01/93

09/10/93

09/17/93

10/16/93

10/31/93

11/20/93

01/04/94

10/15/93

09/24/93

10/01/93

10/30/93

11/14/93

11/20/93

01/04/94

11/01/93

10/11/93

10/18/93

11/16/93

12/01/93

12/20/93

02/01/94

11/15/93

10/22/93

10/29/93

11/30/93

12/15/93

12/20/93

02/01/94

12/01/93

11/05/93

11/15/93

12/16/93

12/31/93

01/20/94

03/01/94

12/15/93

11/24/93

12/01/93

12/30/93

01/14/94

01/20/94

03/01/94

* Tlie "Earliest Effective Date" is computed assuming that the agency
follows the publication schedule above, that the Rules Review Commission approves
the rule at the next calendar month meeting after submission, and that RRC delivers
the rule to the Codifier of Rules five (5) business days before the 1st business day of
the next calendar month.

GENERAL STATUTES OF NORTH CAROLINA

CHAPTER 150B

THE ADMINISTRATIVE PROCEDURE ACT

[The following excerpt contains the statutory provisions of the Administrative Procedure Act as amended by
the 1991 General Assembly, Second Session effective July 1, 1992.]

Article 1.
General Provisions.
§ 150B-1. Policy and scope.

(a) Purpose. -- This Chapter establishes a uni-
form system of administrative rule making and
adjudicatory procedures for agencies. The proce-
dures ensure that the functions of rule making,
investigation, advocacy, and adjudication are not
all performed by the same person in the adminis-
trative process.

(b) Rights. — This Chapter confers procedural
rights.

(1) The North Carolina National Guard in
exercising its court-martial jurisdiction.

(2) The Department of Human Resources
in exercising its authority over the
Camp Butner reservation granted in
Article 6 of Chapter 122C of the Gen-
eral Statutes.

(3) The Utilities Commission.

(4) The Industrial Commission.

(5) The Employment Security Commission.

(d) Exemptions From Rule Making. — Article
2A of this Chapter does not apply to the following:

(1) The Commission.

(2) The North Carolina Low-Level Radio-
active Waste Management Authority in
administering the provisions of G.S.
104G-10and G.S. 104G-11.

(3) The North Carolina Hazardous Waste
Management Commission in administer-
ing the provisions of G.S. 130B-13 and
G.S. 130B-14.

(4) The Department of Revenue, except
that Parts 3 and 4 of Article 2A apply
to the Department.

(5) The North Carolina Air Cargo Airport
Authority with respect to the acquisi-
tion, construction, operation, or use,
including fees or charges, of any por-
tion of a cargo airport complex.

(e) Exemptions From Contested Case Provi-
sions. -- The contested case provisions of this
Chapter apply to all agencies and all proceedings
not expressly exempted from the Chapter. The

contested case provisions of this Chapter do not
apply to the following:

(1) The Department of Human Resources
and the Department of Environment,
Health, and Natural Resources in com-
plying with the procedural safeguards
mandated by Section 680 of Part H of
Public Law 99-457 as amended (Educa-
tion of the Handicapped Act Amend-
ments of 1986).

(2) The Governor's Waste Management
Board in administering the provisions of
G.S. 104E-6.2and G.S. 130A-293.

(3) The North Carolina Low-Level Radio-
active Waste Management Authority in
administering the provisions of G.S.
104G-9, 104G-10, and 104G-11.

(4) The North Carolina Hazardous Waste
Management Commission in administer-
ing the provisions of G.S. 130B-11,
130B-13, and BOB- 14.

(5) Hearings required pursuant to the Reha-
bilitation Act of 1973, (Public Law
93-122), as amended and federal regu-
lations promulgated thereunder. G.S.
150B-51(a) is considered a contested
case hearing provision that does not
apply to these hearings.

(6) The Department of Revenue.

(7) The Department of Correction.

(8) The Department of Transportation,
except as provided in G.S. 136-29.

(9) The Occupational Safety and Health
Review Board in all actions that do not
involve agricultural employers.

(10) The North Carolina Air Cargo Airport
Authority with respect to the acquisi-
tion, construction, operation, or use,
including fees or charges, of any por-
tion of a cargo airport complex.

(f) Exemption From All But Judicial Review. —
No Article in this Chapter except Article 4 applies
to the University of North Carolina.
§ 150B-2. Definitions. — As used in this

Chapter,

(01) 'Administrative law judge" means a
person appointed under G.S. 7A-752,

7:13 NORTH CAROLINA REGISTER October 1, 1992

1254

GENERAL STATUTES OF NORTH CAROLINA

7A-753, or 7A-757.

(1) "Agency" means an agency or an offi-
cer in the executive branch of the gov-
ernment of this State and includes the
Council of State, the Governor's Of-
fice, a board, a commission, a depart-
ment, a division, a council, and any
other unit of government in the execu-
tive branch. A local unit of govern-
ment is not an agency.

(la) "Adopt" means to take final action to
create, amend, or repeal a rule.

(lb) "Codifier of Rules" means the Chief
Administrative Law Judge of the Office
of Administrative Hearings or a desig-
nated representative of the Chief Ad-
ministrative Law Judge.

(lc) "Commission" means the Rules Review
Commission.

(2) "Contested case" means an administra-
tive proceeding pursuant to this Chapter
to resolve a dispute between an agency
and another person that involves the
person's rights, duties, or privileges,
including licensing or the levy of a
monetary penalty. "Contested case"
does not include rulemaking, declarato-
ry rulings, or the award or denial of a
scholarship or grant.

(2a) Repealed.

(2b) "Hearing officer" means a person or
group of persons designated by an
agency that is subject to Article 3A of
this Chapter to preside in a contested
case hearing conducted under that Arti-
cle.

(3) "License" means any certificate, permit
or other evidence, by whatever name
called, of a right or privilege to engage
in any activity, except licenses issued
under Chapter 20 and Subchapter I of
Chapter 105 of the General Statutes and
occupational licenses.

(4) "Licensing" means any administrative
action issuing, failing to issue, suspend-
ing, or revoking a license or occupa-
tional license. "Licensing" does not
include controversies over whether an
examination was fair or whether the
applicant passed the examination.

(4a) Occupational license" means any certifi-
cate, permit, or other evidence, by
whatever name called, of a right or
privilege to engage in a profession,
occupation, or field of endeavor that is

issued by an occupational licensing
agency.
(4b) "Occupational licensing agency" means
any board, commission, committee or
other agency of the State of North
Carolina which is established for the
primary purpose of regulating the entry
of persons into, and/or the conduct of
persons within a particular profession,
occupation or field of endeavor, and
which is authorized to issue and revoke
licenses. "Occupational licensing agen-
cy" does not include State agencies or
departments which may as only a part
of their regular function issue permits
or licenses.

(5) "Party" means any person or agency
named or admitted as a party or proper-
ly seeking as of right to be admitted as
a party and includes the agency as
appropriate. This subdivision does not
permit an agency that makes a final
decision, or an officer or employee of
the agency, to petition for initial judi-
cial review of that decision.

(6) "Person aggrieved" means any person
or group of persons of common interest
directly or indirectly affected substan-
tially in his or its person, property, or
employment by an administrative deci-
sion.

(7) "Person" means any natural person,
partnership, corporation, body politic
and any unincorporated association,
organization, or society which may sue
or be sued under a common name.

(8) "Residence" means domicile or princi-
pal place of business.

(8a) "Rule" means any agency regulation,
standard, or statement of general appli-
cability that implements or interprets an
enactment of the General Assembly or
Congress or a regulation adopted by a
federal agency or that describes the
procedure or practice requirements of
an agency. The term includes the
establishment of a fee and the amend-
ment or repeal of a prior rule. The
term does not include the following:
a. Statements concerning only the
internal management of an agency
or group of agencies within the
same principal office or depart-
ment enumerated in G.S. 143-11
or 143B-6, including policies and

1255

7:13 NORTH CAROLINA REGISTER October 1, 1992

GENERAL STATUTES OF NORTH CAROLINA

procedures manuals, if the state-
ment does not directly or substan-
tially affect the procedural or
substantive rights or duties of a
person not employed by the agen-
cy or group of agencies.

b. Budgets and budget policies and
procedures issued by the Director
of the Budget, by the head of a
department, as defined by G.S.
143A-2 or G.S. 143B-3, by an
occupational licensing board, as
defined by G.S. 93B-1, or by the
State Board of Elections.

c. Nonbinding interpretive state-
ments within the delegated author-
ity of an agency that merely
define, interpret, or explain the
meaning of a statute or rule.

d. A form, the contents or substan-
tive requirements of which are
prescribed by rule or statute.

e. Statements of agency policy made
in the context of another proceed-
ing, including:

1 . Declaratory rulings under G.S.
150B-4.

2. Orders establishing or fixing
rates or tariffs.

f. Requirements, communicated to
the public by the use of signs or
symbols, concerning the use of
public roads, bridges, ferries,
buildings, or facilities.

g. Statements that set forth criteria
or guidelines to be used by the
staff of an agency in performing
audits, investigations, or inspec-
tions; in settling financial disputes
or negotiating financial arrange-
ments; or in the defense, prosecu-
tion, or settlement of cases.

h. Scientific, architectural, or engi-
neering standards, forms, or
procedures, including design
criteria and construction standards
used to construct or maintain
highways, bridges, or ferries.

i. Job classification standards, job
qualifications, and salaries estab-
lished for positions under the
jurisdiction of the State Personnel
Commission.

j. Establishment of the interest rate

that applies to tax assessments

under G.S. 105-241.1 and the
variable component of the excise
tax on motor fuel under G.S.
105-434.
(8b) "Substantial evidence" means relevant
evidence a reasonable mind might
accept as adequate to support a con-
clusion.
(9) Repealed.
§ 150B-3. Special provisions on licensing.

(a) When an applicant or a licensee makes a
timely and sufficient application for issuance or
renewal of a license or occupational license,
including the payment of any required license fee,
the existing license or occupational license does
not expire until a decision on the application is
finally made by the agency, and if the application
is denied or the terms of the new license or occu-
pational license are limited, until the last day for
applying for judicial review of the agency order.
This subsection does not affect agency action
summarily suspending a license or occupational
license under subsections (b) and (c) of this sec-
tion.

(b) Before the commencement of proceedings
for the suspension, revocation, annulment, with-
drawal, recall, cancellation, or amendment of any
license other than an occupational license, the
agency shall give notice to the licensee, pursuant
to the provisions of G.S. 150B-23. Before the
commencement of such proceedings involving an
occupational license, the agency shall give notice
pursuant to the provisions of G.S. 150B-38. In
either case, the licensee shall be given an opportu-
nity to show compliance with all lawful require-
ments for retention of the license or occupational
license.

(c) If the agency finds that the public health,
safety, or welfare requires emergency action and
incorporates this finding in its order, summary
suspension of a license or occupational license may
be ordered effective on the date specified in the
order or on service of the certified copy of the
order at the last known address of the licensee,
whichever is later, and effective during the pro-
ceedings. The proceedings shall be promptly
commenced and determined.

Nothing in this subsection shall be construed as
amending or repealing any special statutes, in
effect prior to February 1, 1976, which provide
for the summary suspension of a license.
§ 150B-4. Declaratory rulings.

(a) On request of a person aggrieved, an agency
shall issue a declaratory ruling as to the validity of
a rule or as to the applicability to a given state of

7:13 NORTH CAROLINA REGISTER October 1, 1992

1256

GENERAL STATUTES OF NORTH CAROLINA

facts of a statute administered by the agency or of
a rule or order of the agency, except when the
agency for good cause finds issuance of a ruling
undesirable. The agency shall prescribe in its
rules the circumstances in which rulings shall or
shall not be issued. A declaratory ruling is bind-
ing on the agency and the person requesting it
unless it is altered or set aside by the court. An
agency may not retroactively change a declaratory
ruling, but nothing in this section prevents an
agency from prospectively changing a declaratory
ruling. A declaratory ruling is subject to judicial
review in the same manner as an order in a con-
tested case. Failure of the agency to issue a
declaratory ruling on the merits within 60 days of
the request for such ruling shall constitute a denial
of the request as well as a denial of the merits of
the request and shall be subject to judicial review,
(b) This section does not apply to the Depart-
ment of Correction.

Article 2.
Rule Making.

Repealed.

Article 2A.
Rules.
Part 1. General Provisions.
§ 150B-18. Scope and effect.

This Article applies to an agency's exercise of its
authority to adopt a rule. A rule is not valid
unless it is adopted in substantial compliance with
this Article.

§ 150B-19. Restrictions on what can be adopt-
ed as a rule.

An agency may not adopt a rule that does one or
more of the following:

(1) Implements or interprets a law unless
that law or another law specifically
authorizes the agency to do so.

(2) Enlarges the scope of a profession,
occupation, or field of endeavor for
which an occupational license is re-
quired.

(3) Imposes criminal liability or a civil
penalty for an act or omission, includ-
ing the violation of a rule, unless a law
specifically authorizes the agency to do
so or a law declares that violation of
the rule is a criminal offense or is
grounds for a civil penalty.

(4) Repeats the content of a law, a rule, or
a federal regulation.

(5) Establishes a reasonable fee or other
reasonable charge for providing a ser-
vice in fulfillment of a duty unless a

law specifically authorizes the agency
to do so or the fee or other charge is
for one of the following:

a. A service to a State, federal, or local
governmental unit.

b. A copy of part or all of a State publi-
cation or other document, the cost of
mailing a document, or both.

c. A transcript of a public hearing.

d. A conference, workshop, or course.

e. Data processing services.

(6) Allows the agency to waive or modify
a requirement set in a rule unless a rule
establishes specific guidelines the agen-
cy must follow in determining whether
to waive or modify the requirement.

§ 150B-20. Petitioning an agency to adopt a

rule.

(a) Petition. -- A person may petition an agency
to adopt a rule by submitting to the agency a
written rule-making petition requesting the adop-
tion. A person may submit written comments with
a rule-making petition. If a rule-making petition
requests the agency to create or amend a rule, the
person must submit the proposed text of the
requested rule change and a statement of the effect
of the requested rule change. Each agency must
establish by rule the procedure for submitting a
rule-making petition to it and the procedure the
agency follows in considering a rule-making
petition.

(b) Time. — An agency must grant or deny a
rule-making petition submitted to it within 30 days
after the date the rule-making petition is submitted,
unless the agency is a board or commission. If the
agency is a board or commission, it must grant or
deny a rule-making petition within 120 days after
the date the rule-making petition is submitted.

(c) Action. — If an agency denies a rule-making
petition, it must send the person who submitted the
petition a written statement of the reasons for
denying the petition. If an agency grants a
rule-making petition, it must inform the person
who submitted the rule-making petition of its
decision and must initiate rule-making proceedings.
When an agency grants a rule-making petition
requesting the creation or amendment of a rule, the
notice of rule making it publishes in the North
Carolina Register may state that the agency is
initiating rule-making proceedings as the result of
a rule-making petition, state the name of the
person who submitted the rule-making petition, set
out the text of the requested rule change submitted
with the rule-making petition, and state whether
the agency endorses the proposed rule change.

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(d) Review. — Denial of a rule-making petition
is a final agency decision and is subject to judicial
review under Article 4 of this Chapter. Failure of
an agency to grant or deny a rule-making petition
within the time limits set in subsection (b) is a
denial of the rule-making petition.

(e) Exception. — This section does not apply to
the Department of Correction.

§ 150B-21. Agency must designate

rule-making coordinator.

Each agency must designate one or more
rule-making coordinators to oversee the agency's
rule-making functions. The coordinator must
prepare notices of public hearings, coordinate
access to the agency's rules, and serve as the
liaison between the agency, other agencies, and the
public in the rule-making process.

Part 2. Adoption of Rules.
§ 150B-21.1. Procedure for adopting a tem-
porary rule.

(a) Adoption. — An agency may adopt a tempo-
rary rule without prior notice or hearing or upon
any abbreviated notice or hearing the agency finds
practical when it finds that adherence to the notice
and hearing requirements of this Part would be
contrary to the public interest and that the immedi-
ate adoption of the rule is required by one or more
of the following:

(1) A serious and unforeseen threat to the
public health, safety, or welfare.

(2) The effective date of a recent act of the
General Assembly or the United States
Congress.

(3) A recent change in federal or State
budgetary policy.

(4) A federal regulation.

(5) A court order.

(6) The need for the rule to become effec-
tive the same date as the State Medical
Facilities Plan approved by the Gover-
nor, if the rule addresses a matter
included in the State Medical Facilities
Plan.

An agency must prepare a written statement of
its findings of need for a temporary rule. The
statement must be signed by the head of the agen-
cy adopting the rule.

An agency must begin rule-making proceedings
for a permanent rule by the day it adopts a tempo-
rary rule. An agency begins rule-making proceed-
ings for a permanent rule by submitting to the
codifier written notice of its intent to adopt a
permanent rule.

(b) Review. — When an agency adopts a tempo-
rary rule it must submit the rule, the agency's

written statement of its findings of need for the
rule, and the notice of intent to adopt a permanent
rule to the Codifier of Rules. Within one business
day after an agency submits a temporary rule, the
Codifier of Rules must review the agency's written
statement of findings of need for the rule to deter-
mine whether the statement of need meets the
criteria listed in subsection (a). In reviewing the
statement, the Codifier of Rules may consider any
information submitted by the agency or another
person. If the Codifier of Rules finds that the
statement meets the criteria, the Codifier of Rules
must notify the head of the agency and enter the
rule in the North Carolina Administrative Code.

If the Codifier of Rules finds that the statement
does not meet the criteria, the Codifier of Rules
must immediately notify the head of the agency.
The agency may supplement its statement of need
with additional findings or submit a new statement.
If the agency provides additional findings or
submits a new statement, the Codifier of Rules
must review the additional findings or new state-
ment within one business day after the agency
submits the additional findings or new statement.
If the Codifier of Rules again finds that the state-
ment does not meet the criteria listed in subsection
(a), the Codifier of Rules must immediately notify
the head of the agency.

If an agency decides not to provide additional
findings or submit a new statement when notified
by the Codifier of Rules that the agency's findings
of need for a rule do not meet the required crite-
ria, the agency must notify the Codifier of Rules
of its decision. The Codifier of Rules must then
enter the rule in the North Carolina Administrative
Code on the sixth business day after receiving
notice of the agency's decision.

(c) Standing. — A person aggrieved by a tempo-
rary rule adopted by an agency may file an action
for declaratory judgment in Wake County Superior
Court pursuant to Article 26 of Chapter 1 of the
General Statutes. In the action, the court shall
determine whether the agency's written statement
of findings of need for the rule meets the criteria
listed in subsection (a) and whether the rule meets
the standards in G.S. 150B-21.9 that apply to
review of a permanent rule. The court may not
grant an ex parte temporary restraining order.

Filing a petition for rule making or a request for
a declaratory ruling with the agency that adopted
the rule is not a prerequisite to filing an action
under this subsection. A person who files an
action for declaratory judgment under this subsec-
tion must serve a copy of the complaint on the
agency that adopted the rule being contested, the

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GENERAL STATUTES OF NORTH CAROLINA

Codifier of Rules, and the Commission.

(d) Effective Date and Expiration. — A tempo-
rary rule becomes effective on the date specified in
G.S. 150B-21.3. A temporary rule expires on the
date specified in the rule or 180 days from the date
the rule becomes effective, whichever comes first.
§ 150B-21.2. Procedure for adopting a per-
manent rule.

(a) Notice. -- Before an agency adopts a perma-
nent rule, it must publish notice of its intent to
adopt a permanent rule in the North Carolina
Register and as required by any other law. The
notice published in the North Carolina Register
must include all of the following:

(1) Either the text of the proposed rule or
a statement of the subject matter of the
proposed rule making.

(2) A short explanation of the reason for
the proposed action.

(3) A citation to the law that gives the
agency the authority to adopt the pro-
posed rule, if the notice includes the
text of the proposed rule, or a citation
to the law that gives the agency the
authority to adopt a rule on the subject
matter of the proposed rule making, if
the notice includes only a statement of
the subject matter of the proposed rule
making.

(4) The proposed effective date of the
proposed rule, if the notice includes the
text of the proposed rule, or the pro-
posed effective date of a rule adopted
on the subject matter of the proposed
rule making, if the notice includes only
a statement of the subject matter of the
proposed rule making.

(5) The date, time, and place of any public
hearing scheduled on the proposed rule
or subject matter of the proposed rule
making.

(6) Instructions on how a person may
demand a public hearing on a proposed
rule if the notice does not schedule a
public hearing on the proposed rule and
subsection (c) requires the agency to
hold a public hearing on the proposed
rule when requested to do so.

(7) The period of time during which and
the person to whom written comments
may be submitted on the proposed rule
or subject matter of the proposed rule
making.

(8) If a fiscal note has been prepared for
the proposed rule or will be prepared

when a rule is proposed on the subject

matter of the proposed rule making, a

statement that a copy of the fiscal note

can be obtained from the agency.

(b) Mailing List. -- An agency must maintain a

mailing list of persons who have requested notice

of rule making. When an agency publishes a

rule-making notice in the North Carolina Register,

it must mail a copy of the notice to each person on

the mailing list who has requested notice of

rule-making proceedings on the rule or the subject

matter for rule making described in the notice. An

agency may charge an annual fee to each person

on the agency's mailing list to cover copying and

mailing costs.

(c) Hearing. — An agency must hold a public
hearing on a rule it proposes to adopt in two
circumstances and may hold a public hearing in
other circumstances. When an agency is required
to hold a public hearing on a proposed rule or
decides to hold a public hearing on a proposed rule
when it is not required to do so, the agency must
publish in the North Carolina Register a notice of
the date, time, and place of the public hearing.
The hearing date of a public hearing held after the
agency publishes notice of the hearing in the North
Carolina Register must be at least 15 days after the
date the notice is published.

An agency must hold a public hearing on a rule
it proposes to adopt in the following two circum-
stances:

(1 ) The agency publishes a statement of the
subject matter of the proposed rule
making in the notice in the North Caro-
lina Register.

(2) The agency publishes the text of the
proposed rule in the notice in the North
Carolina Register and all the following
apply:

a. The notice does not schedule a public
hearing on the proposed rule.

b. Within 15 days after the notice is
published, the agency receives a
written request for a public hearing on
the proposed rule.

c. The proposed rule is not part of a
rule-making proceeding the agency
initiated by publishing a statement of
the subject matter of proposed rule
making.

d. The proposed text is not a changed
version of proposed text the agency
previously published in the course of
rule-making proceedings but did not
adopt.

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(d) Text After Subject-Matter Notice. — When
an agency publishes notice of the subject matter of
proposed rule making in the North Carolina
Register, it must subsequently publish in the North
Carolina Register the text of the rule it proposes to
adopt as a result of the public hearing and of any
comments received on the subject matter. An
agency may not publish the proposed text of a rule
for which it published a subject-matter notice
before the public hearing on the subject matter.

(e) Comments. -- An agency must accept com-
ments on the text of a proposed rule published in
the North Carolina Register for at least 30 days
after the text is published or until the date of any
public hearing held on the proposed rule, whichev-
er is longer. An agency must accept comments on
a statement of the subject matter of proposed rule
making until the public hearing on the subject
matter. An agency must consider fully all written
and oral comments received.

(f) Adoption. — An agency may not adopt a rule
until the time for commenting on the proposed text
of the rule has elapsed and may not adopt a rule if
more than 12 months have elapsed since the end of
the time for commenting on the proposed text of
the rule. An agency may not adopt a rule that
differs substantially from the text of a proposed
rule published in the North Carolina Register
unless the agency publishes the text of the pro-
posed different rule in the North Carolina Register
and accepts comments on the proposed different
rule for the time set in subsection (e).

An adopted rule differs substantially from a
proposed rule if it does one or more of the follow-
ing:

(1) Affects the interests of persons who,
based on the notice published in the
North Carolina Register or the pro-
posed text of the rule, could not reason-
ably have determined that the rule
would affect their interests.

(2) Addresses a subject matter or an issue
that is not addressed in the proposed
text of the rule.

(3) Produces an effect that could not rea-
sonably have been expected based on
the proposed text of the rule.

When an agency adopts a rule, it may not take
subsequent action on the rule without following the
procedures in this Part.

(g) Explanation. — An agency must issue a
concise written statement explaining why the
agency adopted a rule if, within 30 days after the
agency adopts the rule, a person asks the agency to
do so. The explanation must state the principal

reasons for and against adopting the rule and must
discuss why the agency rejected any arguments
made or considerations urged against the adoption
of the rule.

(h) Record. — An agency must keep a record of
a rule-making proceeding. The record must
include all written comments received, a transcript
or recording of any public hearing held on the
rule, and any written explanation made by the
agency for adopting the rule.
§ 150B-21.3. Effective date of rules.

(a) Temporary Rule. — A temporary rule be-
comes effective on the date the Codifier of Rules
enters the rule in the North Carolina Administra-
tive Code.

(b) Permanent Rule. - A permanent rule ap-
proved by the Commission becomes effective five
business days after the Commission delivers the
rule to the Codifier of Rules, unless the agency
adopting the rule specifies a later effective date.
If the agency specifies a later effective date, the
rule becomes effective on that date.

A permanent rule that is not approved by the
Commission becomes effective five business days
after the agency adopting the rule delivers the rule
to the Codifier of Rules, unless the agency adopt-
ing the rule specifies a later effective date. If the
agency specifies a later effective date, the rule
becomes effective on that date.

(c) OSHA Standard. — A permanent rule con-
cerning an occupational safety and health standard
that is adopted by the Occupational Safety and
Health Division of the Department of Labor and is
identical to a federal regulation promulgated by the
Secretary of the United States Department of
Labor becomes effective on the date the Division
delivers the rule to the Codifier of Rules, unless
the Division specifies a later effective date. If the
Division specifies a later effective date, the rule
becomes effective on that date.

§ 150B-21.4. Fiscal notes on rules.

(a) State Funds. — Before an agency publishes in
the North Carolina Register the proposed text of a
permanent rule change that would require the
expenditure or distribution of funds subject to the
Executive Budget Act, Article 1 of Chapter 143, it
must submit the text of the proposed rule change
and a fiscal note on the proposed rule change to
the Director of the Budget and obtain certification
from the Director that the funds that would be
required by the proposed rule change are available.
The fiscal note must state the amount of funds that
would be expended or distributed as a result of the
proposed rule change and explain how the amount
was computed. The Director of the Budget must

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GENERAL STATUTES OF NORTH CAROLINA

certify a proposed rule change if funds are avail-
able to cover the expenditure or distribution
required by the proposed rule change.

(b) Local Funds. — Before an agency publishes
in the North Carolina Register the proposed text of
a permanent rule change that would affect the
expenditures or revenues of a unit of local govern-
ment, it must submit the text of the proposed rule
change and a fiscal note on the proposed rule
change to the Fiscal Research Division of the
General Assembly, the Office of State Budget and
Management, the North Carolina Association of
County Commissioners, and the North Carolina
League of Municipalities. The fiscal note must
state the amount by which the proposed rule
change would increase or decrease expenditures or
revenues of a unit of local government and must
explain how the amount was computed.

(c) Errors. — An erroneous fiscal note prepared
in good faith does not affect the validity of a rule.
§ 150B-21.5. Circumstances when notice and
rule-making hearing not required.

(a) Amendment. — An agency is not required to
publish a notice of rule making in the North
Carolina Register or hold a public hearing when it
proposes to amend a rule, without changing the
substance of the rule, to do one of the following:

( 1 ) Reletter or renumber the rule or
subparts of the rule.

(2) Substitute one name for another when
an organization or position is renamed.

(3) Correct a citation in the rule to another
rule or law when the citation has be-
come inaccurate since the rule was
adopted because of the repeal or renum-
bering of the cited rule or law.

(4) Change information that is readily
available to the public, such as an
address or a telephone number.

(5) Correct a typographical error made in
entering the rule in the North Carolina
Administrative Code.

(6) Change a rule in response to a request
or an objection by the Commission.

(b) Repeal. — An agency is not required to
publish a notice of rule making in the North
Carolina Register or hold a public hearing when it
proposes to repeal a rule as a result of any of the
following:

( 1 ) The law under which the rule was
adopted is repealed.

(2) The law under which the rule was
adopted or the rule itself is declared
unconstitutional.

(3) The rule is declared to be in excess of

the agency's statutory authority.

(c) OSHA Standard. — The Occupational Safety
and Health Division of the Department of Labor is
not required to publish a notice of rule making in
the North Carolina Register or hold a public
hearing when it proposes to adopt a rule that
concerns an occupational safety and health stan-
dard and is identical to a federal regulation pro-
mulgated by the Secretary of the United States
Department of Labor. The Occupational Safety
and Health Division is not required to submit to
the Commission for review a rule for which notice
and hearing is not required under this subsection.
§ 150B-21.6. Incorporating material in a rule
by reference.

An agency may incorporate the following materi-
al by reference in a rule without repeating the text
of the referenced material:

(1) Another rule or part of a rule adopted by
the agency.

(2) All or part of a code, standard, or regula-
tion adopted by another agency, the
federal government, or a generally recog-
nized organization or association.

(3) Material adopted to meet a requirement
of the federal government.

In incorporating material by reference, the
agency must designate in the rule whether or not
the incorporation includes subsequent amendments
and editions of the referenced material. The
agency can change this designation only by a
subsequent rule-making proceeding. The agency
must have copies of the incorporated material
available for inspection and must specify in the
rule both where copies of the material can be
obtained and the cost on the date the rule is adopt-
ed of a copy of the material.

A statement in a rule that a rule incorporates
material by reference in accordance with former
G.S. 150B- 14(b) is a statement that the rule does
not include subsequent amendments and editions of
the referenced material. A statement in a rule that
a rule incorporates material by reference in accor-
dance with former G.S. 150B-14(c) is a statement
that the rule includes subsequent amendments and
editions of the referenced material.
§ 150B-21.7. Effect of transfer of duties or
termination of agency on rules.

When a law that authorizes an agency to adopt a
rule is repealed and another law gives the same or
another agency substantially the same authority to
adopt a rule, the rule remains in effect until the
agency amends or repeals the rule. When a law
that authorizes an agency to adopt a rule is re-
pealed and another law does not give the same or

(

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GENERAL STATUTES OF NORTH CAROLINA

another agency substantially the same authority to
adopt a rule, a rule adopted under the repealed law
is repealed as of the date the law is repealed.

When an executive order abolishes part or all of
an agency and transfers a function of that agency
to another agency, a rule concerning the trans-
ferred function remains in effect until the agency
to which the function is transferred amends or
repeals the rule. When an executive order abolish-
es part or all of an agency and does not transfer a
function of that agency to another agency, a rule
concerning a function abolished by the executive
order is repealed as of the effective date of the
executive order.

The Director of Fiscal Research of the General
Assembly must notify the Codifier of Rules when
a rule is repealed under this section. When noti-
fied of a rule repealed under this section, the
Codifier of Rules must enter the repeal of the rule
in the North Carolina Administrative Code.

Part 3. Review by Commission.
§ 150B-21.8. Review of rule by Commission.

(a) Temporary Rule. — The Commission does
not review a temporary rule.

(b) Permanent Rule. — An agency must submit
a permanent rule adopted by it to the Commission
before the rule can be included in the North
Carolina Administrative Code. The Commission
reviews a permanent rule in accordance with the
standards in G.S. 150B-21.9 and follows the
procedure in this Part in its review of a permanent
rule.

(c) Scope. — When the Commission reviews an
amendment to a rule, it may review the entire rule
that is being amended. The procedure in G.S.
1 50B-2 1.12 applies when the Commission objects
to a part of a rule that is within its scope of review
but is not changed by a rule amendment.

§ 150B-21.9. Standards and timetable for
review by Commission.

(a) Standards. -- The Commission must deter-
mine whether a rule meets all of the following
criteria:

(1) It is within the authority delegated to
the agency by the General Assembly.

(2) It is clear and unambiguous.

(3) It is reasonably necessary to fulfill a
duty delegated to the agency by the
General Assembly.

The Commission may determine if a rule submit-
ted to it was adopted in accordance with Part 2 of
this Article. The Commission must notify the
agency that adopted the rule if it determines that a
rule was not adopted in accordance with Part 2 of
this Article and must return the rule to the agency.

Entry of a rule in the North Carolina Administra-
tive Code after review by the Commission is
conclusive evidence that the rule was adopted in
accordance with Part 2 of this Article.

(b) Timetable. — The Commission must review
a rule submitted to it on or before the twentieth of
a month by the last day of the next month. The
Commission must review a rule submitted to it
after the twentieth of a month by the last day of
the second subsequent month.
§ 150B-21.10. Commission action on perma-
nent rule.

At the first meeting at which a permanent rule is
before the Commission for review, the Commis-
sion must take one of the following actions:

(1) Approve the rule, if the Commission
determines that the rule meets the stan-
dards for review.

(2) Object to the rule, if the Commission
determines that the rule does not meet the
standards for review.

(3) Extend the period for reviewing the rule,
if the Commission determines it needs
additional information on the rule to be
able to decide whether the rule meets the
standards for review.

In reviewing a new rule or an amendment to an
existing rule, the Commission may request an
agency to make technical changes to the rule and
may condition its approval of the rule on the
agency's making the requested technical changes.
§ 150B-21.il. Procedure when Commission
approves permanent rule.

When the Commission approves a permanent
rule, it must notify the agency that adopted the
rule of the Commission's approval and must
deliver the approved rule to the Codifier of Rules.
The Commission must deliver an approved rule by
the end of the month in which the Commission
approved the rule, unless the agency asks the
Commission to delay the delivery of the rule.
§ 150B-21.12. Procedure when Commission
objects to a permanent rule.

(a) Action. -- When the Commission objects to
a permanent rule, it must send the agency that
adopted the rule a written statement of the objec-
tion and the reason for the objection. The agency
that adopted the rule must take one of the follow-
ing actions:

(1) Change the rule to satisfy the
Commission's objection and submit the
revised rule to the Commission.

(2) Submit a written response to the Com-
mission indicating that the agency has
decided not to change the rule.

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GENERAL STATUTES OF NORTH CAROLINA

An agency that is not a board or commission
must take one of these actions within 30 days after
receiving the Commission's statement of objection.
A board or commission must take one of these
actions within 30 days after receiving the
Commission's statement of objection or within 10
days after the board or commission's next regular-
ly scheduled meeting, whichever comes later.

When an agency changes a rule in response to an
objection by the Commission, the Commission
must determine whether the change satisfies the
Commission's objection. If it does, the Commis-
sion must approve the rule. If it does not, the
Commission must send the agency a written
statement of the Commission's continued objection
and the reason for the continued objection.

A rule to which the Commission has objected
remains under review by the Commission until the
agency that adopted the rule decides not to satisfy
the Commission's objection and makes a written
request to the Commission to return the rule to the
agency. When the Commission returns a rule to
which it has objected, it may send to the President
of the Senate and each member of the General
Assembly a report of its objection to the rule.

(b) Entry in Code. -- When the Commission
returns a rule to which it has objected to the
agency that adopted the rule, the Commission must
notify the Codifier of Rules of its action and of the
basis of the Commission's objection. An agency
whose rule is returned may file the rule with the
Codifier of Rules. When the Codifier of Rules
enters in the North Carolina Administrative Code
a rule to which the Commission objected, the entry
must reflect the Commission's objection and must
state the standard on which the Commission based
its objection.

§ 150B-21.13. Procedure when Commission
extends period for review of permanent rule.

When the Commission extends the period for
review of a permanent rule, it must notify the
agency that adopted the rule of the extension and
the reason for the extension. After the Commis-
sion extends the period for review of a rule, it may
call a public hearing on the rule. Within 70 days
after extending the period for review of a rule, the
Commission must decide whether to approve the
rule, object to the rule, or call a public hearing on
the rule.
§ 150B-21.14. Public hearing on a rule.

The Commission may call a public hearing on a
rule when it extends the period for review of the
rule. At the request of an agency, the Commission
may call a public hearing on a rule that is not
before it for review. Calling a public hearing on

a rule not already before the Commission for
review places the rule before the Commission for
review. When the Commission decides to call a
public hearing on a rule, it must publish notice of
the public hearing in the North Carolina Register.
After a public hearing on a rule, the Commission
must approve the rule or object to the rule in
accordance with the standards and procedures in
this Part. The Commission must make its decision
of whether to approve or object to the rule within
70 days after the public hearing.
§ 150B-21.15. Declaratory judgment action
authorized when Commission objects to a per-
manent rule.

(a) Standing. -- A person aggrieved by a perma-
nent rule entered in the North Carolina Adminis-
trative Code with an objection by the Commission
based on a lack of statutory authority may file an
action for declaratory judgment in Wake County
Superior Court pursuant to Article 26 of Chapter
1 of the General Statutes. In the action, the court
shall determine whether the agency exceeded its
authority in adopting the rule.

A declaratory judgment action under this section
must be filed within 90 days after the rule that is
the subject of the action is entered in the Code.
Filing a petition for rule making or a request for a
declaratory ruling with the agency that adopted the
rule is not a prerequisite to filing an action under
this section. A person who files an action for
declaratory judgment under this section must serve
a copy of the complaint on the agency that adopted
the rule being contested, the Codifier of Rules, and
the Commission.

(b) Record. -- Within 10 days after a declaratory
judgment action is filed under this section, the
agency that adopted the rule that is the subject of
the action must send to the court the original or a
certified copy of the record in the Commission's
review of the rule. The record consists of the
rule, the Commission's letter of objection to the
rule, the agency's written response to the
Commission's letter, and any other relevant docu-
ments before the Commission when it decided to
object to the rule.

(c) Effect. — A rule remains in effect during
the pendency of an action for declaratory judgment
under this section unless the court suspends the
rule after finding that the agency that adopted the
rule has no substantial likelihood of prevailing in
the action.

(d) Changes. — While a rule is the subject of a
declaratory judgment action under this section, the
agency that adopted the rule may submit to the
Commission changes in the rule to satisfy the

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GENERAL STATUTES OF NORTH CAROLINA

Commission's objection. If the Commission
determines that changes submitted to it satisfy its
objection, the Commission must accept the changes
and file the revised rule with the Codifier of
Rules. The Codifier must then enter the rule in
the North Carolina Administrative Code. When
the Commission determines that changes submitted
to it satisfy its objection, the agency that submitted
the changes must notify the court of the changes
and of the Commission's action.

Part 4. Publication of Code and Register.
§ 150B-21.17. North Carolina Register.

(a) Content. — The Codifier of Rules must
publish the North Carolina Register. The North
Carolina Register must be published at least two
times a month and must contain the following:

(1) Notices of proposed adoptions of rules.

(2) Notices of receipt of a petition for
municipal incorporation, as required by
G.S. 120-165.

(3) Executive orders of the Governor.

(4) Final decision letters from the United
States Attorney General concerning
changes in laws that affect voting in a
jurisdiction subject to § 5 of the Voting
Rights Act of 1965, as required by
G.S. 120-30.9H.

(5) Orders of the Tax Review Board issued
under G.S. 105-241.2.

(6) Other information the Codifier deter-
mines helpful to the public.

(b) Form. — When an agency publishes notice in
the North Carolina Register of the proposed text of
a new rule, the Codifier of Rules must publish the
complete text of the proposed new rule. In pub-
lishing the text of a proposed new rule, the Codifi-
er must indicate the rule is new by underlining the
proposed text of the rule.

When an agency publishes notice in the North
Carolina Register of the proposed text of an
amendment to an existing rule, the Codifier must
publish the complete text of the rule that is being
amended unless the Codifier determines that
publication of the complete text of the rule being
amended is not necessary to enable the reader to
understand the proposed amendment. In publish-
ing the text of a proposed amendment to a rule,
the Codifier must indicate deleted text with over-
strikes and added text with underlines.

When an agency publishes notice in the North
Carolina Register of the proposed repeal of an
existing rule, the Codifier must publish the com-
plete text of the rule the agency proposes to repeal
unless the Codifier determines that publication of
the complete text is impractical. In publishing the

text of a rule the agency proposes to repeal, the
Codifier must indicate the rule is to be repealed.
§ 150B-21.18. North Carolina Administrative
Code.

The Codifier of Rules must compile all rules into
a Code known as the North Carolina Administra-
tive Code. The format and indexing of the Code
must conform as nearly as practical to the format
and indexing of the North Carolina General Stat-
utes. The Codifier must publish printed copies of
the Code and may publish the Code in other
forms. The Codifier must keep the Code current
by publishing the Code in a loose-leaf format and
periodically providing new pages to be substituted
for outdated pages, by publishing the Code in
volumes and periodically publishing cumulative
supplements, or by another means. The Codifier
must keep superseded rules.
§ 150B-21.19. Requirements for including
rule in Code.

To be acceptable for inclusion in the North
Carolina Administrative Code, a rule must:

(1) Cite the law under which the rule is
adopted.

(2) Be signed by the head of the agency or
the rule-making coordinator for the agen-
cy that adopted the rule.

(3) Be in the physical form specified by the
Codifier of Rules.

(4) Have been reviewed by the Commission,
if the rule is a permanent rule.

§ 150B-21.20. Codifier's authority to revise
form of rules.

(a) Authority. — After consulting with the
agency that adopted the rule, the Codifier of Rules
may revise the form of a rule submitted for inclu-
sion in the North Carolina Administrative Code
within 10 business days after the rule is submitted
to do one or more of the following:

(1) Rearrange the order of the rule in the
Code or the order of the subsections,
subdivisions, or other subparts of the
rule.

(2) Provide a catch line or heading for the
rule or revise the catch line or heading
of the rule.

(3) Reletter or renumber the rule or the
subparts of the rule in accordance with
a uniform system.

(4) Rearrange definitions and lists.

(5) Make other changes in arrangement or
in form that do not change the sub-
stance of the rule and are necessary or
desirable for a clear and orderly ar-
rangement of the rule.

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(b) Effect. — Revision of a rule by the Codifier
of Rules under this section does not affect the
effective date of the rule or require the agency to
readopt or resubmit the rule. When the Codifier
of Rules revises the form of a rule, the Codifier of
Rules must send the agency that adopted the rule
a copy of the revised rule. The revised rule is the
official rule.

§ 150B-21.21. Publication of rules of North
Carolina State Bar and exempt agencies.

(a) State Bar. — The North Carolina State Bar
must submit a rule adopted or approved by it and
entered in the minutes of the North Carolina
Supreme Court to the Codifier of Rules for inclu-
sion in the North Carolina Administrative Code.
The State Bar must submit a rule within 15 days
after it is entered in the minutes of the Supreme
Court. The Codifier of Rules must compile, make
available for public inspection, and publish a rule
included in the North Carolina Administrative
Code under this subsection in the same manner as
other rules in the Code.

(b) Exempt Agencies. — Notwithstanding G.S.
150B-1, the North Carolina Utilities Commission
must submit to the Codifier of Rules those rules of
the Utilities Commission that are published from
time to time in the publication titled "North Caroli-
na Utilities Laws and Regulations." The Utilities
Commission must submit a rule required to be
included in the Code within 15 days after it is
adopted. The Codifier of Rules must publish the
rules submitted by the Utilities Commission in the
North Carolina Administrative Code in the same
format as they are submitted.

Notwithstanding G.S. 150B-1, an agency other
than the Utilities Commission that is exempted
from this Article by that statute must submit a
temporary or permanent rule adopted by it to the
Codifier of Rules for inclusion in the North Caroli-
na Administrative Code. One of these exempt
agencies must submit a rule to the Codifier of
Rules within 15 days after it adopts the rule. The
Codifier of Rules must compile, make available for
public inspection, and publish a rule of one of
these agencies in the North Carolina Administra-
tive Code in the same manner as other rules in the
Code.
§ 150B-21.22. Effect of inclusion in Code.

Official or judicial notice can be taken of a rule
in the North Carolina Administrative Code and
shall be taken when appropriate. Codification of a
rule in the North Carolina Administrative Code is
prima facie evidence of compliance with this
Article.
§ 150B-21.23. Rule publication manual.

The Codifier of Rules must publish a manual that
sets out the form and method for publishing a
notice of rule making in the North Carolina Regis-
ter and for filing a rule in the North Carolina
Administrative Code.

§ 150B-21.24. Free copies of Register and
Code.

(a) Register. — The Codifier of Rules must
distribute copies of the North Carolina Register as
soon after publication as practical, without charge,
to the following:

(1) A person who receives a free copy of
the North Carolina Administrative
Code.

(2) Upon request, one copy to each mem-
ber of the General Assembly.

(b) Code. — The Codifier of Rules must distrib-
ute copies of the North Carolina Administrative
Code as soon after publication as practical, without
charge, to the following:

(1) One copy to the board of commission-
ers of each county, to be placed at the
county clerk of court's office or at
another place selected by the board of
commissioners.

(2) One copy to the Commission.

(3) One copy to the Clerk of the Supreme
Court and to the Clerk of the Court of
Appeals of North Carolina.

(4) One copy to the Supreme Court Library
and one copy to the library of the Court
of Appeals.

(5) One copy to the Administrative Office
of the Courts.

(6) One copy to the Governor.

(7) Five copies to the Legislative Services
Commission for the use of the General
Assembly.

(8) Upon request, one copy to each State
official or department to whom or to
which copies of the appellate division
reports are furnished under G.S.
7A-343.1.

(9) Five copies to the Division of State
Library of the Department of Cultural
Resources pursuant to G.S. 125-11.7.

§ 150B-21.25. Paid copies of Register and
Code.

A person who is not entitled to a free copy of the
North Carolina Administrative Code or North
Carolina Register may obtain a copy by paying a
fee set by the Codifier of Rules. The Codifier
must set separate fees for the North Carolina
Register and the North Carolina Administrative
Code in amounts that cover publication, copying.

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GENERAL STATUTES OF NORTH CAROLINA

and mailing costs. All monies received under this
section must be credited to the General Fund.
Article 3.
Administrative Hearings.
§ 150B-22. Settlement; contested case.

It is the policy of this State that any dispute
between an agency and another person that in-
volves the person's rights, duties, or privileges,
including licensing or the levy of a monetary
penalty, should be settled through informal proce-
dures. In trying to reach a settlement through
informal procedures, the agency may not conduct
a proceeding at which sworn testimony is taken
and witnesses may be cross-examined. If the
agency and the other person do not agree to a
resolution of the dispute through informal proce-
dures, either the agency or the person may com-
mence an administrative proceeding to determine
the person's rights, duties, or privileges, at which
time the dispute becomes a "contested case."
§ 150B-23. Commencement; assignment of
administrative law judge; hearing required;
notice; intervention.

(a) A contested case shall be commenced by
filing a petition with the Office of Administrative
Hearings and, except as provided in Article 3A of
this Chapter, shall be conducted by that Office.
The party who files the petition shall serve a copy
of the petition on all other parties and, if the
dispute concerns a license, the person who holds
the license. A party who files a petition shall file
a certificate of service together with the petition.
A petition shall be signed by a party or a represen-
tative of the party and, if filed by a party other
than an agency, shall state facts tending to estab-
lish that the agency named as the respondent has
deprived the petitioner of property, has ordered the
petitioner to pay a fine or civil penalty, or has
otherwise substantially prejudiced the petitioner's
rights and that the agency:

(1) Exceeded its authority or jurisdiction;

(2) Acted erroneously;

(3) Failed to use proper procedure;

(4) Acted arbitrarily or capriciously; or

(5) Failed to act as required by law or rule.
The parties in a contested case shall be given an

opportunity for a hearing without undue delay.
Any person aggrieved may commence a contested
case hereunder.

A local government employee, applicant for
employment, or former employee to whom Chap-
ter 126 of the General Statutes applies may com-
mence a contested case under this Article in the
same manner as any other petitioner. The case
shall be conducted in the Office of Administrative

Hearings in the same manner as other contested
cases under this Article, except that the decision of
the State Personnel Commission shall be advisory
only and not binding on the local appointing
authority, unless (1) the employee, applicant, or
former employee has been subjected to discrimina-
tion prohibited by Article 6 of Chapter 126 of the
General Statutes or (2) applicable federal stan-
dards require a binding decision. In these two
cases, the State Personnel Commission's decision
shall be binding.

(al) Repealed by Session Laws 1985 (Reg.
Sess., 1986), c. 1022, s. 1(9).

(a2) An administrative law judge assigned to a
contested case may require a party to the case to
file a prehearing statement. A party's prehearing
statement must be served on all other parties to the
contested case.

(b) The parties to a contested case shall be given
a notice of hearing not less than 15 days before the
hearing by the Office of Administrative Hearings.
If prehearing statements have been filed in the
case, the notice shall state the date, hour, and
place of the hearing. If prehearing statements
have not been filed in the case, the notice shall
state the date, hour, place, and nature of the
hearing, shall list the particular sections of the
statutes and rules involved, and shall give a short
and plain statement of the factual allegations.

(c) Notice shall be given personally or by
certified mail. If given by certified mail, it shall
be deemed to have been given on the delivery date
appearing on the return receipt. If giving of notice
cannot be accomplished either personally or by
certified mail, notice shall then be given in the
manner provided in G.S. 1A-1, Rule 4(jl).

(d) Any person may petition to become a party
by filing a motion to intervene in the manner
provided in G.S. 1A-1, Rule 24. In addition, any
person interested in a contested case may intervene
and participate in that proceeding to the extent
deemed appropriate by the administrative law
judge.

(e) All hearings under this Chapter shall be open
to the public. Hearings shall be conducted in an
impartial manner. Hearings shall be conducted
according to the procedures set out in this Article,
except to the extent and in the particulars that
specific hearing procedures and time standards are
governed by another statute.

(f) Unless another statute or a federal statute or
regulation sets a time limitation for the filing of a
petition in contested cases against a specified
agency, the general limitation for the filing of a
petition in a contested case is 60 days. The time

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GENERAL STATUTES OF NORTH CAROLINA

limitation, whether established by another statute,
federal statute, or federal regulation, or this
section, shall commence when notice is given of
the agency decision to all persons aggrieved who
are known to the agency by personal delivery or
by the placing of the notice in an official deposito-
ry of the United States Postal Service wrapped in
a wrapper addressed to the person at the latest
address given by the person to the agency. The
notice shall be in writing, and shall set forth the
agency action, and shall inform the persons of the
right, the procedure, and the time limit to file a
contested case petition. When no informal settle-
ment request has been received by the agency
prior to issuance of the notice, any subsequent
informal settlement request shall not suspend the
time limitation for the filing of a petition for a
contested case hearing.
§ 150B-24. Venue of hearing.

(a) The hearing of a contested case shall be
conducted:

(1) In the county in this State in which any
person whose property or rights are the
subject matter of the hearing maintains
his residence;

(2) In the county where the agency main-
tains its principal office if the property
or rights that are the subject matter of
the hearing do not affect any person or
if the subject matter of the hearing is
the property or rights of residents of
more than one county; or

(3) In any county determined by the admin-
istrative law judge in his discretion to
promote the ends of justice or better
serve the convenience of witnesses.

(b) Any person whose property or rights are the
subject matter of the hearing waives his objection
to venue by proceeding in the hearing.

§ 150B-25. Conduct of hearing; answer.

(a) If a party fails to appear in a contested case
after proper service of notice, and if no adjourn-
ment or continuance is granted, the administrative
law judge may proceed with the hearing in the
absence of the party.

(b) Repealed.

(c) The parties shall be given an opportunity to
present arguments on issues of law and policy and
an opportunity to present evidence on issues of
fact.

(d) A party may cross-examine any witness,
including the author of a document prepared by,
on behalf of, or for use of the agency and offered
in evidence. Any party may submit rebuttal
evidence.

§ 150B-26. Consolidation.

When contested cases involving a common
question of law or fact or multiple proceedings
involving the same or related parties are pending,
the Director of the Office of Administrative Hear-
ings may order a joint hearing of any matters at
issue in the cases, order the cases consolidated, or
make other orders to reduce costs or delay in the
proceedings.
§ 150B-27. Subpoena.

After the commencement of a contested case,
subpoenas may be issued and served in accordance
with G.S. 1A-1, Rule 45. In addition to the
methods of service in G.S. 1A-1, Rule 45, a State
law enforcement officer may serve a subpoena on
behalf of an agency that is a party to the contested
case by any method by which a sheriff may serve
a subpoena under that Rule. Upon a motion, the
administrative law judge may quash a subpoena if,
upon a hearing, the administrative law judge finds
that the evidence the production of which is re-
quired does not relate to a matter in issue, the
subpoena does not describe with sufficient particu-
larity the evidence the production of which is
required, or for any other reason sufficient in law
the subpoena may be quashed. Witness fees shall
be paid by the party requesting the subpoena to
subpoenaed witnesses in accordance with G.S.
7A-314. However, State officials or employees
who are subpoenaed shall not be entitled to witness
fees, but they shall receive their normal salary and
they shall not be required to take any annual leave
for the witness days. Travel expenses of State
officials or employees who are subpoenaed shall be
reimbursed as provided in G.S. 138-6.
§ 150B-28. Depositions and discovery.

(a) A deposition may be used in lieu of other
evidence when taken in compliance with the Rules
of Civil Procedure, G.S. 1A-1. Parties in contest-
ed cases may engage in discovery pursuant to the
provisions of the Rules of Civil Procedure, G.S.
1A-1.

(b) On a request for identifiable agency records,
with respect to material facts involved in a contest-
ed case, except records related solely to the inter-
nal procedures of the agency or which are exempt
from disclosure by law, an agency shall promptly
make the records available to a party.

§ 150B-29. Rules of evidence.

(a) In all contested cases, irrelevant, immaterial
and unduly repetitious evidence shall be excluded.
Except as otherwise provided, the rules of evi-
dence as applied in the trial division of the General
Court of Justice shall be followed; but. when
evidence is not reasonably available under the

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GENERAL STATUTES OF NORTH CAROLINA

rules to show relevant facts, then the most reliable
and substantial evidence available shall be admit-
ted. On the judge's own motion, an administrative
law judge may exclude evidence that is inadmissi-
ble under this section. It shall not be necessary
for a party or his attorney to object at the hearing
to evidence in order to preserve the right to object
to its consideration by the administrative law judge
in making a recommended decision, by the agency
in making a final decision, or by the court on
judicial review.

(b) Evidence in a contested case, including
records and documents, shall be offered and made
a part of the record. Factual information or
evidence not made a part of the record shall not be
considered in the determination of the case, except
as permitted under G.S. 150B-30. Documentary
evidence may be received in the form of a copy or
excerpt or may be incorporated by reference, if the
materials so incorporated are available for exami-
nation by the parties. Upon timely request, a
party shall be given an opportunity to compare the
copy with the original if available.
§ 150B-30. Official notice.

Official notice may be taken of all facts of which
judicial notice may be taken and of other facts
within the specialized knowledge of the agency.
The noticed fact and its source shall be stated and
made known to affected parties at the earliest
practicable time, and any party shall on timely
request be afforded an opportunity to dispute the
noticed fact through submission of evidence and
argument.
§ 150B-31. Stipulations.

(a) The parties in a contested case may, by a
stipulation in writing filed with the administrative
law judge, agree upon any fact involved in the
controversy, which stipulation shall be used as
evidence at the hearing and be binding on the
parties thereto. Parties should agree upon facts
when practicable.

(b) Except as otherwise provided by law, dispo-
sition may be made of a contested case by stipula-
tion, agreed settlement, consent order, waiver,
default, or other method agreed upon by the
parties.

§ 150B-32. Designation of administrative law
judge.

(a) The Director of the Office of Administrative
Hearings shall assign himself or another adminis-
trative law judge to preside over a contested case.

(al) Repealed by Session Laws 1985 (Reg.
Sess., 1986), c. 1022, s. 1 (15), effective July 15,
1986.

(b) On the filing in good faith by a party of a

timely and sufficient affidavit of personal bias or
disqualification of an administrative law judge, the
administrative law judge shall determine the matter
as a part of the record in the case, and this deter-
mination shall be subject to judicial review at the
conclusion of the proceeding.

(c) When an administrative law judge is disqual-
ified or it is impracticable for him to continue the
hearing, the Director shall assign another adminis-
trative law judge to continue with the case unless
it is shown that substantial prejudice to any party
will result, in which event a new hearing shall be
held or the case dismissed without prejudice.
§ 150B-33. Powers of administrative law
judge.

(a) An administrative law judge shall stay any
contested case under this Article on motion of an
agency which is a party to the contested case, if
the agency shows by supporting affidavits that it is
engaged in other litigation or administrative pro-
ceedings, by whatever name called, with or before
a federal agency, and this other litigation or
administrative proceedings will determine the
position, in whole or in part, of the agency in the
contested case. At the conclusion of the other
litigation or administrative proceedings, the con-
tested case shall proceed and be determined as
expeditiously as possible.

(b) An administrative law judge may:

(1) Administer oaths and affirmations;

(2) Sign, issue, and rule on subpoenas in
accordance with G.S. 150B-27 and
G.S. 1A-1, Rule 45;

(3) Provide for the taking of testimony by
deposition and rule on all objections to
discovery in accordance with G.S.
1A-1, the Rules of Civil Procedure;

(3a) Rule on all prehearing motions that are
authorized by G.S. 1A-1, the Rules of
Civil Procedure;

(4) Regulate the course of the hearings,
including discovery, set the time and
place for continued hearings, and fix
the time for filing of briefs and other
documents;

(5) Direct the parties to appear and confer
to consider simplification of the issues
by consent of the parties;

(6) Stay the contested action by the agency
pending the outcome of the case, upon
such terms as he deems proper, and
subject to the provisions of G.S. 1A-1,
Rule 65;

(7) Determine whether the hearing shall be
recorded by a stenographer or by an

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GENERAL STATUTES OF NORTH CAROLINA

electronic device; and

(8) Enter an order returnable in the General
Court of Justice, Superior Court Divi-
sion, to show cause why the person
should not be held in contempt. The
Court shall have the power to impose
punishment as for contempt for any act
which would constitute direct or indi-
rect contempt if the act occurred in an
action pending in Superior Court.

(9) Determine that a rule as applied in a
particular case is void because (1) it is
not within the statutory authority of the
agency, (2) is not clear and unambigu-
ous to persons it is intended to direct,
guide, or assist, or (3) is not reasonably
necessary to enable the agency to fulfill
a duty delegated to it by the General
Assembly.

(10) Impose the sanctions provided for in
G.S. 1 A-l or Chapter 3 of Title 26 of
the North Carolina Administrative Code
for noncompliance with applicable
procedural rules.

§ 150B-34. Recommended decision or order
of administrative law judge.

(a) Except as provided in G.S. 150B-36(c), in
each contested case the administrative law judge
shall make a recommended decision or order that
contains findings of fact and conclusions of law.

(b) Repealed.

§ 150B-35. No ex parte communication;

exceptions.

Unless required for disposition of an ex parte
matter authorized by law, neither the administra-
tive law judge assigned to a contested case nor a
member or employee of the agency making a final
decision in the case may communicate, directly or
indirectly, in connection with any issue of fact, or
question of law, with any person or party or his
representative, except on notice and opportunity
for all parties to participate.
§ 150B-36. Final decision.

(a) Before the agency makes a final decision, it
shall give each party an opportunity to file excep-
tions to the decision recommended by the adminis-
trative law judge, and to present written arguments
to those in the agency who will make the final
decision or order. If a party files in good faith a
timely and sufficient affidavit of personal bias or
other reason for disqualification of a member of
the agency making the final decision, the agency
shall determine the matter as a part of the record
in the case, and the determination is subject to
judicial review at the conclusion of the case.

(b) A final decision or order in a contested case
shall be made by the agency in writing after
review of the official record as defined in G.S.
150B-37(a) and shall include findings of fact and
conclusions of law. If the agency does not adopt
the administrative law judge's recommended
decision as its final decision, the agency shall state
in its decision or order the specific reasons why it
did not adopt the administrative law judge's rec-
ommended decision. The agency may consider
only the official record prepared pursuant to G.S.
150B-37 in making a final decision or order, and
the final decision or order shall be supported by
substantial evidence admissible under G.S.
150B-29(a), 150B-30. or 150B-31. A copy of the
decision or order shall be served upon each party
personally or by certified mail addressed to the
party at the latest address given by the party to the
agency, and a copy shall be furnished to his
attorney of record and the Office of Administrative
Hearings.

(1) A determination that the Office of
Administrative Hearings lacks jurisdic-
tion.

(2) An order entered pursuant to the au-
thority in G.S. 7A-759(e).

(3) An order entered pursuant to a written
prehearing motion that either dismisses
the contested case for failure of the
petitioner to prosecute or grants the
relief requested when a party does not
comply with procedural requirements.

(4) An order entered pursuant to a
prehearing motion to dismiss the con-
tested case in accordance with G.S.
1A-1, Rule 12(b) when the order dis-
poses of all issues in the contested case.

§ 150B-37. Official record.

(a) In a contested case, the Office of Adminis-
trative Hearings shall prepare an official record of
the case that includes:

(1) Notices, pleadings, motions, and inter-
mediate rulings;

(2) Questions and offers of proof, objec-
tions, and rulings thereon;

(3) Evidence presented;

(4) Matters officially noticed, except mat-
ters so obvious that a statement of them
would serve no useful purpose; and

(5) Repealed by Session Laws 1987. c.
878, s. 25, effective August 14, 1987.

(6) The administrative law judge's recom-

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GENERAL STATUTES OF NORTH CAROLINA

mended decision or order,
(b) Proceedings at which oral evidence is
presented shall be recorded, but need not be
transcribed unless requested by a party. Each
party shall bear the cost of the transcript or part
thereof or copy of said transcript or part thereof
which said party requests, and said transcript or
part thereof shall be added to the official record as
an exhibit.

(c) The Office of Administrative Hearings shall
forward a copy of the official record to the agency
making the final decision and shall forward a copy
of the recommended decision to each party.
Article 3A.
Other Administrative Hearings.
§ 150B-38. Scope; hearing required; notice;
venue.

(a) The provisions of this Article shall apply to
the following agencies:

(1) Occupational licensing agencies;

(2) The State Banking Commission, the
Commissioner of Banks, the Savings
Institutions Division of the Department
of Economic and Community Develop-
ment, and the Credit Union Division of
the Department of Economic and Com-
munity Development; and

(3) The Department of Insurance and the
Commissioner of Insurance.

(b) Prior to any agency action in a contested
case, the agency shall give the parties in the case
an opportunity for a hearing without undue delay
and notice not less than 15 days before the hear-
ing. Notice to the parties shall include:

(1) A statement of the date, hour, place,
and nature of the hearing;

(2) A reference to the particular sections of
the statutes and rules involved; and

(3) A short and plain statement of the facts
alleged.

(c) Notice shall be given personally or by
certified mail. If given by certified mail, notice
shall be deemed to have been given on the delivery
date appearing on the return receipt. If notice
cannot be given personally or by certified mail,
then notice shall be given in the manner provided
in G.S. 1A-1, Rule 4(jl).

(d) A party who has been served with a notice
of hearing may file a written response with the
agency. If a written response is filed, a copy of
the response must be mailed to all other parties not
less than 10 days before the date set for the hear-
ing.

(e) All hearings conducted under this Article
shall be open to the public. A hearing conducted

by the agency shall be held in the county where
the agency maintains its principal office. A
hearing conducted for the agency by an administra-
tive law judge requested under G.S. 150B-40 shall
be held in a county in this State where any person
whose property or rights are the subject matter of
the hearing resides. If a different venue would
promote the ends of justice or better serve the
convenience of witnesses, the agency or the admin-
istrative law judge may designate another county.
A person whose property or rights are the subject
matter of the hearing waives his objection to venue
if he proceeds in the hearing.

(f) Any person may petition to become a party
by filing with the agency or hearing officer a
motion to intervene in the manner provided by
G.S. 1 A- 1 , Rule 24. In addition, any person
interested in a contested case under this Article
may intervene and participate to the extent deemed
appropriate by the agency hearing officer.

(g) When contested cases involving a common
question of law or fact or multiple proceedings
involving the same or related parties are pending
before an agency, the agency may order a joint
hearing of any matters at issue in the cases, order
the cases consolidated, or make other orders to
reduce costs or delay in the proceedings.

(h) Every agency shall adopt rules governing the
conduct of hearings that are consistent with the
provisions of this Article.

§ 150B-39. Depositions; discovery; subpoe-
nas.

(a) A deposition may be used in lieu of other
evidence when taken in compliance with the Rules
of Civil Procedure, G.S. 1A-1. Parties in a
contested case may engage in discovery pursuant
to the provisions of the Rules of Civil Procedure,
G.S. 1A-1.

(b) Upon a request for an identifiable agency
record involving a material fact in a contested
case, the agency shall promptly provide the record
to a party, unless the record relates solely to the
agency's internal procedures or is exempt from
disclosure by law.

(c) In preparation for, or in the conduct of, a
contested case subpoenas may be issued and served
in accordance with G.S. 1A-1, Rule 45. Upon a
motion, the agency may quash a subpoena if, upon
a hearing, the agency finds that the evidence, the
production of which is required, does not relate to
a matter in issue, the subpoena does not describe
with sufficient particularity the evidence the
production of which is required, or for any other
reason sufficient in law the subpoena may be
quashed. Witness fees shall be paid by the party

7:13 NORTH CAROLINA REGISTER October 1, 1992

1270

GENERAL STATUTES OF NORTH CAROLINA

requesting the subpoena to subpoenaed witnesses
in accordance with G.S. 7A-314. However. State
officials or employees who are subpoenaed shall
not be entitled to any witness fees, but they shall
receive their normal salary and they shall not be
required to take any annual leave for the witness
days. Travel expenses of State officials or em-
ployees who are subpoenaed shall be reimbursed
as provided in G.S. 138-6.

§ 150B-40. Conduct of hearing; presiding
officer: ex parte communication.

(a) Hearings shall be conducted in a fair and
impartial manner. At the hearing, the agency and
the parties shall be given an opportunity to present
evidence on issues of fact, examine and
cross-examine witnesses, including the author of a
document prepared by. on behalf of or for the use
of the agency and offered into evidence, submit
rebuttal evidence, and present arguments on issues
of law or policy.

If a party fails to appear in a contested case after
he has been given proper notice, the agency may
continue the hearing or proceed with the hearing
and make its decision in the absence of the party.

(b) Except as provided under subsection (e) of
this section, hearings under this Article shall be
conducted by a majority of the agency. An agency
shall designate one or more of its members to
preside at the hearing. If a party files in good
faith a timely and sufficient affidavit of the person-
al bias or other reason for disqualification of any
member of the agency, the agency shall determine
the matter as a part of the record in the case, and
its determination shall be subject to judicial review
at the conclusion of the proceeding. If a presiding
officer is disqualified or it is impracticable for him
to continue the hearing, another presiding officer
shall be assigned to continue with the case, except
that if assignment of a new presiding officer will
cause substantial prejudice tc any party, a new
hearing shall be held or the case dismissed without
prejudice.

(1) Administer oaths and affirmations;

(2) Sign and issue subpoenas in the name
of the agency, requiring attendance and
giving of testimony by witnesses and
the production of books, papers, and
other documentary evidence;

(3) Provide for the taking of testimony by
deposition;

(4) Regulate the course of the hearings, set
the time and place for continued hear-
ings, and fix the time for filing of
briefs and other documents:

(5) Direct the parties to appear and confer
to consider simplification of the issues
by consent of the parties; and

(6) Apply to any judge of the superior
court resident in the district or presid-
ing at a term of court in the county
where a hearing is pending for an order
to show cause why any person should
not be held in contempt of the agency
and its processes, and the court shall
have the power to impose punishment
as for contempt for acts which would
constitute direct or indirect contempt if
the acts occurred in an action pending
in superior court.

(d) Unless required for disposition of an ex
parte matter authorized by law, a member of an
agency assigned to make a decision or to make
findings of fact and conclusions of law in a con-
tested case under this Article shall not communi-
cate, directly or indirectly, in connection with any
issue of fact or question of law. with any person or
party or his representative, except on notice and
opportunity for all parties to participate. This
prohibition begins at the time of the notice of
hearing. An agency member may communicate
with other members of the agency and may have
the aid and advice of the agency staff other than
the staff which has been or is engaged in investi-
gating or prosecuting functions in connection with
the case under consideration or a factually-related
case. This section does not apply to an agency
employee or party representative with professional
training in accounting, actuarial science, econom-
ics or financial analysis insofar as the case in-
volves financial practices or conditions.

(e) When a majority of an agency is unable or
elects not to hear a contested case, the agency shall
apply to the Director of the Office of Administra-
tive Hearings for the designation of an administra-
tive law judge to preside at the hearing of a con-
tested case under this Article. Upon receipt of the
application, the Director shall, without undue
delay, assign an administrative law judge to hear
the case.

The provisions of this Article, rather than the
provisions of Article 3, shall govern a contested
case in which the agency requests an administra-
tive law judge from the Office of Administrative
Hearings.

The administrative law judge assigned to hear a
contested case under this Article shall sit in place
of the agency and shall have the authority of the
presiding officer in a contested case under this
Article. The administrative law judge shall make

1271

7:13 NORTH CAROLINA REGISTER October 1, 1992

GENERAL STATUTES OF NORTH CAROLINA

a proposal for decision, which shall contain pro-
posed findings of fact and proposed conclusions of
law.

An administrative law judge shall stay any
contested case under this Article on motion of an
agency which is a party to the contested case, if
the agency shows by supporting affidavits that it is
engaged in other litigation or administrative pro-
ceedings, by whatever name called, with or before
a federal agency, and this other litigation or
administrative proceedings will determine the
position, in whole or in part, of the agency in the
contested case. At the conclusion of the other
litigation or administrative proceedings, the con-
tested case shall proceed and be determined as
expeditiously as possible.

The agency may make its final decision only
after the administrative law judge's proposal for
decision is served on the parties, and an opportuni-
ty is given to each party to file exceptions and
proposed findings of fact and to present oral and
written arguments to the agency.
§ 150B-41. Evidence; stipulations; official
notice.

(a) In all contested cases, irrelevant, immaterial,
and unduly repetitious evidence shall be excluded.
Except as otherwise provided, the rules of evi-
dence as applied in the trial division of the General
Court of Justice shall be followed; but, when
evidence is not reasonably available under such
rules to show relevant facts, they may be shown
by the most reliable and substantial evidence
available. It shall not be necessary for a party or
his attorney to object to evidence at the hearing in
order to preserve the right to object to its consider-
ation by the agency in reaching its decision, or by
the court of judicial review.

(b) Evidence in a contested case, including
records and documents shall be offered and made
a part of the record. Other factual information or
evidence shall not be considered in determination
of the case, except as permitted under G.S.
150B-30. Documentary evidence may be received
in the form of a copy or excerpt or may be incor-
porated by reference, if the materials so incorpo-
rated are available for examination by the parties.
Upon timely request, a party shall be given an
opportunity to compare the copy with the original
if available.

(c) The parties in a contested case under this
Article by a stipulation in writing filed with the
agency may agree upon any fact involved in the
controversy, which stipulation shall be used as
evidence at the hearing and be binding on the
parties thereto. Parties should agree upon facts

when practicable. Except as otherwise provided
by law, disposition may be made of a contested
case by stipulation, agreed settlement, consent
order, waiver, default, or other method agreed
upon by the parties.

(d) Official notice may be taken of all facts of
which judicial notice may be taken and of other
facts within the specialized knowledge of the
agency. The noticed fact and its source shall be
stated and made known to affected parties at the
earliest practicable time, and any party shall on
timely request be afforded an opportunity to
dispute the noticed fact through submission of
evidence and argument. An agency may use its
experience, technical competence, and specialized
knowledge in the evaluation of evidence presented
to it.

§ 150B-42. Final agency decision; official
record.

(a) After compliance with the provisions of G.S.
150B-40(e), if applicable, and review of the
official record, as defined in subsection (b) of this
section, an agency shall make a written final
decision or order in a contested case. The deci-
sion or order shall include findings of fact and
conclusions of law. Findings of fact shall be based
exclusively on the evidence and on matters offi-
cially noticed. Findings of fact, if set forth in
statutory language, shall be accompanied by a
concise and explicit statement of the underlying
facts supporting them. A decision or order shall
not be made except upon consideration of the
record as a whole or such portion thereof as may
be cited by any party to the proceeding and shall
be supported by substantial evidence admissible
under G.S. 150B-41. A copy of the decision or
order shall be served upon each party personally
or by certified mail addressed to the party at the
latest address given by the party to the agency and
a copy shall be furnished to his attorney of record.

(b) An agency shall prepare an official record of
a hearing that shall include:

(1) Notices, pleadings, motions, and inter-
mediate rulings;

(2) Questions and offers of proof, objec-
tions, and rulings thereon;

(3) Evidence presented;

(4) Matters officially noticed, except mat-
ters so obvious that a statement of them
would serve no useful purpose;

(5) Proposed findings and exceptions; and

(6) Any decision, opinion, order, or report
by the officer presiding at the hearing
and by the agency.

7:13 NORTH CAROLINA REGISTER October 1, 1992

1272

GENERAL STATUTES OF NORTH CAROLINA

sented shall be recorded, but need not be tran-
scribed unless requested by a party. Each party
shall bear the cost of the transcript or part thereof
or copy of said transcript or part thereof which
said party requests.

Article 4.
Judicial Review.
§ 150B-43. Right to judicial review.

Any person who is aggrieved by the final deci-
sion in a contested case, and who has exhausted all
administrative remedies made available to him by
statute or agency rule, is entitled to judicial review
of the decision under this Article, unless adequate
procedure for judicial review is provided by
another statute, in which case the review shall be
under such other statute. Nothing in this Chapter
shall prevent any person from invoking any judi-
cial remedy available to him under the law to test
the validity of any administrative action not made
reviewable under this Article.
§ 150B-44. Right to judicial intervention
when decision unreasonably delayed.

Unreasonable delay on the part of any agency or
administrative law judge in taking any required
action shall be justification for any person whose
rights, duties, or privileges are adversely affected
by such delay to seek a court order compelling
action by the agency or administrative law judge.
An agency that is subject to Article 3 of this
Chapter and is not a board or commission has 90
days from the day it receives the official record in
a contested case from the Office of Administrative
Hearings to make a final decision in the case.
This time limit may be extended by the parties or,
for good cause shown, by the agency for an
additional period of up to 90 days. An agency that
is subject to Article 3 of this Chapter and is a
board or commission has 90 days from the day it
receives the official record in a contested case
from the Office of Administrative Hearings or 90
days after its next regularly scheduled meeting,
whichever is longer, to make a final decision in
the case. This time limit may be extended by the
parties or, for good cause shown, by the agency
for an additional period of up to 90 days. If an
agency subject to Article 3 of this Chapter has not
made a final decision within these time limits, the
agency is considered to have adopted the adminis-
trative law judge's recommended decision as the
agency's final decision. Failure of an agency
subject to Article 3A of this Chapter to make a
final decision within 180 days of the close of the
contested case hearing is justification for a person
whose rights, duties, or privileges are adversely
affected by the delay to seek a court order compel-

ling action by the agency or, if the case was heard
by an administrative law judge, by the administra-
tive law judge.

§ 150B-45. Procedure for seeking review;
waiver.

To obtain judicial review of a final decision
under this Article, the person seeking review must
file a petition in the Superior Court of Wake
County or in the superior court of the county
where the person resides.

The person seeking review must file the petition
within 30 days after the person is served with a
written copy of the decision. A person who fails
to file a petition within the required time waives
the right to judicial review under this Article. For
good cause shown, however, the superior court
may accept an untimely petition.
§ 150B-46. Contents of petition; copies served
on all parties; intervention.

The petition shall explicitly state what exceptions
are taken to the decision or procedure and what
relief the petitioner seeks. Within 10 days after
the petition is filed with the court, the party
seeking the review shall serve copies of the peti-
tion by personal service or by certified mail upon
all who were parties of record to the administrative
proceedings. Names and addresses of such parties
shall be furnished to the petitioner by the agency
upon request. Any party to the administrative
proceeding is a party to the review proceedings
unless the party withdraws by notifying the court
of the withdrawal and serving the other parties
with notice of the withdrawal. Other parties to the
proceeding may file a response to the petition
within 30 days of service. Parties, including
agencies, may state exceptions to the decision or
procedure and what relief is sought in the re-
sponse.

Any person aggrieved may petition to become a
party by filing a motion to intervene as provided in
G.S. 1A-1, Rule 24.

§ 150B-47. Records fded with clerk of superi-
or court; contents of records; costs.

Within 30 days after receipt of the copy of the
petition for review, or within such additional time
as the court may allow, the agency that made the
final decision in the contested case shall transmit
to the reviewing court the original or a certified
copy of the official record in the contested case
under review together with: (i) any exceptions,
proposed findings of fact, or written arguments
submitted to the agency in accordance with G.S.
150B-36(a); and (ii) the agency's final decision or
order. With the permission of the court, the
record may be shortened by stipulation of all

1273

7:13 NORTH CAROLINA REGISTER October 1, 1992

GENERAL STATUTES OF NORTH CAROLINA

parties to the review proceedings. Any party
unreasonably refusing to stipulate to limit the
record may be taxed by the court for such addi-
tional costs as may be occasioned by the refusal.
The court may require or permit subsequent
corrections or additions to the record when deemed
desirable.
§ 150B-48. Stay of decision.

At any time before or during the review proceed-
ing, the person aggrieved may apply to the review-
ing court for an order staying the operation of the
administrative decision pending the outcome of the
review. The court may grant or deny the stay in
its discretion upon such terms as it deems proper
and subject to the provisions of G.S. 1A-1, Rule
65.
§ 150B-49. New evidence.

An aggrieved person who files a petition in the
superior court may apply to the court to present
additional evidence. If the court is satisfied that
the evidence is material to the issues, is not merely
cumulative, and could not reasonably have been
presented at the administrative hearing, the court
may remand the case so that additional evidence
can be taken. If an administrative law judge did
not make a recommended decision in the case, the
court shall remand the case to the agency that
conducted the administrative hearing. After
hearing the evidence, the agency may affirm or
modify its previous findings of fact and final
decision. If an administrative law judge made a
recommended decision in the case, the court shall
remand the case to the administrative law judge.
After hearing the evidence, the administrative law
judge may affirm or modify his previous findings
of fact and recommended decision. The administra-
tive law judge shall forward a copy of his decision
to the agency that made the final decision, which
in turn may affirm or modify its previous findings
of fact and final decision. The additional evidence
and any affirmation or modification of a recom-
mended decision or final decision shall be made
part of the official record.

§ 150B-50. Review by superior court without
jury-

The review by a superior court of agency deci-
sions under this Chapter shall be conducted by the
court without a jury.
§ 150B-51. Scope of review.

(a) Initial Determination in Certain Cases. In
reviewing a final decision in a contested case in
which an administrative law judge made a recom-
mended decision, the court shall make two initial
determinations. First, the court shall determine
whether the agency heard new evidence after

receiving the recommended decision. If the court
determines that the agency heard new evidence,
the court shall reverse the decision or remand the
case to the agency to enter a decision in accor-
dance with the evidence in the official record.
Second, if the agency did not adopt the recom-
mended decision, the court shall determine wheth-
er the agency's decision states the specific reasons
why the agency did not adopt the recommended
decision. If the court determines that the agency
did not state specific reasons why it did not adopt
a recommended decision, the court shall reverse
the decision or remand the case to the agency to
enter the specific reasons.

(b) Standard of Review. After making the
determinations, if any, required by subsection (a),
the court reviewing a final decision may affirm the
decision of the agency or remand the case for
further proceedings. It may also reverse or modi-
fy the agency's decision if the substantial rights of
the petitioners may have been prejudiced because
the agency's findings, inferences, conclusions, or
decisions are:

(1) In violation of constitutional provisions;

(2) In excess of the statutory authority or
jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Unsupported by substantial evidence
admissible under G.S. 150B-29(a),
150B-30, or 150B-31 in view of the
entire record as submitted; or

(6) Arbitrary or capricious.

§ 150B-52. Appeal; stay of court's decision.
A party to a review proceeding in a superior
court may appeal to the appellate division from the
final judgment of the superior court as provided in
G.S. 7A-27. Pending the outcome of an appeal,
an appealing party may apply to the court that
issued the judgment under appeal for a stay of that
judgment or a stay of the administrative decision
that is the subject of the appeal, as appropriate.

Article 5.
Publication of Administrative Rules.

Repealed.

7:13 NORTH CAROLINA REGISTER October 1, 1992

1274

IN ADDITION

G.S. 1 20-30. 9H, effective July 16, 1986, requires that all letters and other documents issued by the
Attorney General of the United States in which a final decision is made concerning a "change affecting
voting " under Section 5 of the Voting Rights Act of 1965 be published in the North Carolina Register .

(

U.S. Department of Justice

Civil Rights Division

JRD:LLT:CGM:lrj Voting Section

DJ 166-012-3 P.O. Box 66128

92-3079 Washington, D.C. 20035-6128

92-3343

August 28, 1992

Jesse L. Warren, Esq.

City Attorney

Drawer W-2

Greensboro, North Carolina 27402

Dear Mr. Warren:

This refers to two annexations (Ordinance Nos. 92-75 and 92-88) and the designation of the annexed
areas to election districts for the City of Greensboro in Guilford County, North Carolina, submissions, /

submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42
U.S.C. 1973c. We received your submissions on June 29 and July 20, 1992.

The Attorney General does not interpose any objection to the specified changes. However, we note
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent
litigation to enjoin the enforcement of the changes. In addition, as authorized by Section 5, we reserve the
right to reexamine this submission if additional information that would otherwise require an objection comes
to our attention during the remainder of the sixty-day review period. See the Procedures for the
Administration of Section 5 (28 C.F.R. 51.41 and 51.43).

Sincerely,

John R. Dunn

Assistant Attorney General

Civil Right Division

By:

Steven H. Rosenbaum
Chief, Voting Section

1275 7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

TITLE 2 - DEPARTMENT OF
AGRICULTURE

Notice is hereby given in accordance with G.S.
150B-21. 2 that the North Carolina Pesticide Board
intends to amend rule(s) cited as 2 NCAC 9L
.0524 and .0701 .

1 he proposed effective date of this action is
February 1, 1993.

1 he public hearing will be conducted at 1:00
p.m. on November 5, 1992, at the Board Room,
Agriculture Building, 2 West Ed en ton Street,
Raleigh, NC 27601.

Keason for Proposed Action:

2 NCAC9L . 0524 - To include pest control consul-
tants examination requirement citation from the
N. C. Pesticide Law of 1971.

2 NCAC9L .0701 - To amend the North Carolina
Pesticide Board's current rule in which pine voles
and meadow voles have been declared to be pests
in certain sites, to clarify those sites, and to
include the additional sites of institutional, recre-
ational, and residential areas.

(comment Procedures: Interested persons may
present statements either orally or in writing at the
public hearing or in writing prior to the hearing by
mail addressed to John L. Smith, Secretary, North
Carolina Pesticide Board, P. O. Box 27647, Ra-
leigh, NC 27611.

CHAPTER 9 - FOOD AND DRUG PROTEC-
TION DIVISION

SUBCHAPTER 9L - PESTICIDE SECTION

SECTION .0500 - PESTICIDE LICENSES

.0524 EXPIRATION OF CERTIFICATION

(a) The recertification period shall expire on
June 30th.

(b) At the direction of the Board, each certified
individual will be notified 6-9 months prior to the
recertification expiration date of the individual's
remaining requirements for recertification.

(c) A certified individual who has completed
none of the recertification options in Rule .0522 of
this Section prior to the recertification expiration
date shall be required to retake and satisfactorily
pass a comprehensive license examination defined
in G.S. 143-453 or 143-455 before a license will
be reissued in any category. This examination will
be based on updated training materials approved
by the Board.

(d) No individual will be allowed to carry over
any Continuing Certification Credits from one
recertification period to another.

Statutory Authority G.S. 143-437(1); 143-440(b);
143-453(c)(2); 143-455(d).

SECTION .0700 - DECLARATION OF

PESTS AND RESTRICTIONS ON

THEIR CONTROL

.0701 ORCHARD RATS

The North Carolina Pesticide Board hereby
declares as a pest pine voles [Pitymys (or Micro-
tus) Pinetorum] and meadow voles (Microtus
pennsylvanicus), (commonly called orchard rats)
on or immediately adjacent to cultivated land or
horticultural, nursery, or forest plantings of trees
ef — shrubs cultivated land, forest plantations,
ornamentals nurseries, orchards, or horticultural
plantings in institutional, recreational, and residen-
tial areas .

Statutory Authority G.S. 143-444(1).

TITLE 10 - DEPARTMENT OF HUMAN
RESOURCES

Notice is hereby given in accordance with G.S.
150B-21 .2 that the Commission for Mental Health,
Developmental Disabilities and Substance Abuse
Services intends to adopt rule cited as 10 NCAC
18L . 1525 and amend rules cited as 10 NCAC 14K
.0103, .0314 - .0315; 140 .0106; 14Q .0106,
.0303; 14R .0104 - .0105; 18J .0604; 18P .0903,
.1003.

1 he proposed effective date of this action is
January 4, 1993.

1 he public hearing will be conducted at 2:00

7:13 NORTH CAROLINA REGISTER October 1, 1992

1276

PROPOSED RULES

p.m. on November 13, 1992 at the Wilmington
Hilton, North Water Street, Garden Room - Second
Floor, Wilmington, N.C. 28401.

MXeason for Proposed Action:

10 NCAC 14K .0103, .0314, .0315 - Die pro-
posed changes are to insert new language and new
services into licensure requirements regarding
early intervention to comply with changes in 34
CFR 303. 12 (Federal Early Intervention Regula-
tions).

In October of 1991, P.L. 99-457 was reauthorized
by Congress. Statutory changes resulted in revi-
sions in the federal regulations, most of which
involved terminology and clarification only; howev-
er, one change involving a new service require-
ment is transportation.

10 NCAC 140 .0106 - Vie proposed change is to
ensure the provider has all necessary information
regarding the client, and that responsibilities for
the provider are specified in the agreement. In
addition, the proposed change is for consistency
with same subject in other services regarding
licensure requirements and client record documen-
tation.

10 NCAC 14Q .0303 - To ensure informed con-
sent is obtained whenever a restrictive intervention
is employed on a planned basis.

10 NCAC 14R .0104 - To more clearly state in
facility policy the required time frame for a review
by a qualified professional whenever a restrictive
intervention is used on a planned basis.

10 NCAC 14R .0105 - To qualify which facilities
are subject to review by the Client Rights Commit-
tee.

early intervention service without jeopardizing
their right to receive other early intervention
services.

10 NCAC 18P .0903 - The proposed amendment
is to delete the requirement for Division approval
of written agreement.

10 NCAC 18P .1003 - The proposed amendment
is to delete the requirement for Division approval
of written agreement, and to allow consistency
with other similar Rules for exchange of informa-
tion.

Comment Procedures: Any interested person may
present his comments by oral presentation or by
submitting a written statement. Written comments
must be sent to Charlotte Tucker, Division of
Mental Health, Developmental Disabilities and
Substance Abuse Services, 325 North Salisbury
Street, Raleigh, North Carolina 27603 by Novem-
ber 2, 1992 and must state the Rules to which the
comments are addressed. Persons wishing to make
oral presentations should contact Charlotte Tucker
at 919-733-4774 by November 11, 1992. Time
limits for oral remarks may be imposed by the
Commission Chairman. Fiscal information on
these Rules is available from the Division by
request.

CHAPTER 14 - MENTAL HEALTH:
GENERAL

SUBCHAPTER 14K - CORE LICENSURE
RULES FOR MENTAL HEALTH: MENTAL
RETARDATION AND OTHER DEVELOP-
MENTAL DISABILITDZS: AND
SUBSTANCE ABUSE FACILITIES

SECTION .0100 - GENERAL INFORMA-
TION

10 NCAC 18J .0604 - 77zis Rule sets forth require-
ments regarding State facility relationships for a
facility which is area-operated or a contract
agency. Tfie proposed change is to clarify the
population served and to delete reference to re-
gional director which no longer exists. Die pro-
posed amendment will allow for consistency with
other Rules.

10 NCAC 18L .1525 - Die proposed adoption of
this Rule will allow parents of a child, eligible to
receive services, to accept or decline any type of

.0103 DEFINITIONS

(a) This Rule contains the definitions that apply
to all the rules in this Subchapter and Subchapters
14L through 140 of this Chapter.

(b) In addition to the definitions contained in
this Rule, the terms defined in G.S. 122C-3 also
apply to all the rules in this Subchapter and Sub-
chapters 14L through 140 of this Chapter.

(1) "Administering medication" means
direct application of a drug to the body

(

7277

7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

of a client by injection, inhalation,
ingestion, or any other means.

(2) "Adolescent" means a minor from 13
through 17 years of age.

(3) "Adult" means a person 18 years of age
or older or a person under 18 years of
age who has been married or who has
been emancipated by a court of compe-
tent jurisdiction or is a member of the
armed forces.

(4) "Aftercare" means those services pro-
vided to substance abuse clients after
discharge from a service which facili-
tates the client's integration or reinte-
gration into society. Activities may
include self-help groups, supportive
work programs and staff follow-up
contacts and interventions.

(5) "Alcohol abuse" means psychoactive
substance abuse which is a residual
category for noting maladaptive patterns
of psychoactive substance use that have
never met the criteria for dependence
for that particular class of substance
(criteria delineated in the 1987 edition
of DSM-II1-R published by the Ameri-
can Psychiatric Association, 1400 K
Street, N.W., Washington, D.C. 20005
at a cost of twenty-nine dollars and
ninety-five cents ($29.95) for the soft
cover edition and thirty-nine dollars and
ninety-five cents ($39.95) for the hard
cover edition.) This adoption by refer-
ence does not include subsequent
amendments and editions of the refer-
enced material.

(6) "Alcohol dependence" means psychoac-
tive substance dependence which is a
cluster of cognitive behavioral, and
physiologic symptoms that indicate that
a person has impaired control of psy-
choactive substance use and continues
use of the substance despite adverse
consequences (criteria delineated in the
1 987 edition of DSM-III-R published by
the American Psychiatric Association,
1400 K Street, N.W., Washington,
D.C. 20005 at a cost of twenty-nine
dollars and ninety-five cents ($29.95)
for the soft cover edition and thirty-nine
dollars and ninety-five cents ($39.95)
for the hard cover edition.) This
adoption by reference does not include
subsequent amendments and editions of
the referenced material.

(7) "Applicant" means any person who
intends to establish, maintain or operate
a licensable facility and who applies to
the Department for a license to operate
a facility under the provisions of G.S.
122C, Article 2.

(8) "Approved supported employment
conversion plan" means a planned
approach to changing the type of servic-
es delivered from ADAP facility-based
to supported employment. Approval of
the conversion plan is the responsibility
of the Regional Director of the Division
and the Area Director or his designee if
the facility is operated by a contract
agency of the area program or other
service provider. The Division shall
request appropriate personnel from the
Division of Vocational Rehabilitation to
participate in the review process. The
request for approval of the supported
employment conversion plan shall
include specific written information in
the following areas:

(A) number of clients to be moved into
supported employment placements;

(B) types of supported employment mod-
els to be used;

(D) interim proposed facility staffing
patterns and responsibilities; and

(E) proposed budget for conversion plan.

(9) "Area program" means a legally consti-
tuted public agency providing mental
health, mental retardation and substance
abuse services for a catchment area
designated by the Commission. For
purposes of these Rules, the term "area
program" means the same as "area
authority" as defined in G.S. 122C-3.

(10) "Assessment" means a procedure for
determining the nature and extent of the
problem for which the individual is
seeking service.

(11) "Atypical development" in children
means those from birth to 60 months of
age who demonstrate significantly
atypical behavioral socioemotional,
motor, or sensory development as
manifested by:

(A) Diagnosed hyperactivity, attention
deficit disorder or other behavioral
disorders, or

(B) Identified emotional or behavioral
disorders such as:

7:13 NORTH CAROLINA REGISTER October I, 1992

1278

PROPOSED RULES

(i) delay or abnormality in achieving
expected emotional milestones,
such as pleasurable interest in
adults and peers; ability to com-
municate emotional needs; and
ability to tolerate frustrations,
(ii) persistent failure to initiate or
respond to most social interac-
tions,
(iii) fearfulness or other distress that
does not respond to comforting by
caregivers,
(iv) indiscriminate sociability, e.g.
excessive familiarity with relative
strangers,
(v) self-injurious or unusually aggres-
sive behavior, or
(C) Substantiated physical abuse, sexual
abuse, or other environmental situa-
tions that raise significant concern
regarding the child's emotional
well-being.

(12) "Certified counselor" means an alcohol-
ism, drug abuse or substance abuse
counselor who is certified by the North
Carolina Substance Abuse Professional
Certification Board.

(13) "Child" means a minor from birth
through 12 years of age.

(14) "Chronically mentally ill adult" means
an individual 18 years of age or older
who, as a result of a mental disorder,
exhibits emotional or behavioral func-
tioning which is so impaired as to
interfere substantially with his capacity
to remain in the community without
supportive treatment or services of a
long-term or indefinite duration. In
these persons, mental disability is se-
vere and persistent, resulting in
long-term limitation of their functional
capacities for primary activities of daily
living such as interpersonal relations,
homemaking, self-care, employment
and recreation.

( 15) "Client record" means a written account
of all services provided a client from
the time of admission of the client by
the facility until discharge from the
facility.

(16) "Clinical" means having to do with the
active direct treatment/habilitation of a
client.

(17) "Clinical staff member" means a pro-
fessional who provides active direct

treatment/habilitation to a client.

(18) "Clinical/professional supervision"
means regularly scheduled assistance by
a qualified mental health professional,
a qualified substance abuse professional
or a qualified developmental disabilities
professional to a staff member who is
providing direct, therapeutic interven-
tion to a client or clients. The purpose
of clinical supervision is to ensure that
each client receives appropriate treat-
ment or habilitation which is consistent
with accepted standards of practice and
the needs of the client.

(19) "Contested case" means an administra-
tive proceeding under G.S. 150B,
Article 3, in which the rights, privileg-
es, or duties of a party are required by
law to be determined.

(20) "Contract agency" means a legally
constituted entity with which the area
program contracts for a service exclu-
sive of intermittent purchase of service
for an individually identified client.

(21) "Day/night service" means a service
provided on a regular basis, in a struc-
tured environment that is offered to the
same individual for a period of three or
more hours within a 24-hour period.

(22) "Declaratory ruling" means a formal
and binding interpretation as to:

(A) the validity of a rule; or

(B) the applicability to a given state of
facts of a statute administered by the
Department of Human Resources, or
a rule or order of the Department of
Human Resources.

(23) "Detoxification" means the physical
withdrawal of an individual from alco-
hol or other drugs in order that the
individual can participate in rehabilita-
tion activities.

(24) "Developmentally delayed children"
means those whose development is
delayed in one or more of the following
areas: cognitive development; physical
development, including vision and
hearing; language and speech; psycho
s ocial communication, social and emo-
tional and self help adaptive skills. The
specific level of delay must be:

(A) for children from birth to 36 months
of age, documented by scores 1 Vz
standard deviations below the mean
on standardized tests in at least one of

1279

7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

the above areas of development. Or,
it may be documented by a 20 percent
delay on assessment instruments that
yield scores in months; and
(B) for children from 36 to 60 months of
age, documented by test performance
two standardized deviations below the
mean on standardized tests in one area
of development or by performance
that is one standard deviation below
the norm in two areas of develop-
ment. Or, it may be documented by
a 25 percent delay in two areas on
assessment instruments that yield
scores in months.

(25) "DFS" means the Division of Facility
Services, 701 Barbour Drive, Raleigh,
N.C. 27603.

(26) "Direct care staff" means an individual
who provides active direct care, treat-
ment, or rehabilitation or habilitation
services to clients.

(27) "Dispensing medication" means prepar-
ing and packaging a prescription drug
or device in a container and labeling the
container with information required by
state and federal law. Filling or refill-
ing drug containers with prescription
drugs for subsequent use by a client is
"dispensing". Providing quantities of
unit dose prescription drugs for subse-
quent administration is "dispensing".

(28) "DMH/DD/SAS" means the Division of
Mental Health, Developmental Disabili-
ties, and Substance Abuse Services, 325
N. Salisbury Street, Raleigh, N.C.
27603.

(29) "Documentation" means provision of
written, dated and authenticated evi-
dence of the delivery of client services
or compliance with statutes or rules,
e.g., entries in the client record, poli-
cies and procedures, minutes of meet-
ings, memoranda, reports, schedules,
notices and announcements.

(30) "Drug abuse" means psychoactive
substance abuse which is a residual
category for noting maladaptive patterns
of psychoactive substance use that have
never met the criteria for dependence
for that particular class of substance
(criteria delineated in the 1987 edition
of DSM-III-R published by the Ameri-
can Psychiatric Association, 1400 K
Street, N.W., Washington, D.C. 20005

at a cost of twenty-nine dollars and
ninety-five cents ($29.95) for the soft
cover edition and thirty-nine dollars and
ninety-five cents ($39.95) for the hard
cover edition.) This adoption by
reference does not include subsequent
amendments and editions of the refer-
enced material.

(31) "Drug dependence" means psychoactive
substance dependence which is a cluster
of cognitive behavioral, and physiologic
symptoms that indicate that a person
has impaired control of psychoactive
substance use and continues use of the
substance despite adverse consequences
(criteria delineated in the 1987 edition
of DSM-III-R published by the Ameri-
can Psychiatric Association, 1400 K
Street, N.W., Washington, D.C. 20005
at a cost of twenty-nine dollars and
ninety-five cents ($29.95) for the soft
cover edition and thirty-nine dollars and
ninety-five cents ($39.95) for the hard
cover edition.) This adoption by
reference does not include subsequent
amendments and editions of the refer-
enced material.

(32) "DWI" means driving while impaired,
as defined in G.S. 20-138.1.

(33) "DWI substance abuse assessment"
means a service provided to persons
charged with or convicted of DWI to
determine the presence of chemical
dependency. The "assessment" in-
volves a face-to-face interview with a
substance abuse professional.

(34) "Early Intervention Services" means
those services provided for infants and
toddlers specified in Section 303.12 of
Subpart A of Part 303 of Title 34 of the
Code of Federal Regulations, published
6/22/89. For the purposes of these
services, however, transportation means
assistance in the travel to and from the
multi-disciplinary evaluation, specified
early intervention services provided by
certified developmental day centers or
other center-based services designed
specifically for children with or at risk
for disabilities; and speech, physical or
occupational therapy, or other early
intervention services if provided in a
specialized setting away from the
child's residence. Transportation assis-
tance may be provided by staff, existing

7:13 NORTH CAROLINA REGISTER October 1, 1992

1280

PROPOSED RULES

public or private services or by the
family, who shall be reimbursed for
their expenses, in accordance with
applicable fee provisions. This adop-
tion by reference does not include
subsequent amendments and editions of
the referenced material.

(35) "Evaluation" means an assessment
service which identifies the nature and
extent of an individual's problem
through a systematic appraisal for the
purposes of diagnosis and determination
of the disability of the individual and
the most appropriate plan, if any, for
services.

(36) "First aid" means emergency treatment
for injury or sudden illness before
regular medical care is available. First
aid includes artificial respiration, the
Heimlich maneuver, or other Red Cross
first aid techniques for relieving airway
obstruction, care of wounds and burns,
and temporary administering of splints.

(37) "Governing body" means, in the case of
a corporation, the board of directors; in
the case of an area authority, the area
board; and in all other cases, the owner
of the facility.

(38) "Health Services" means those services
provided for infants and toddlers speci-
fied in Section 303.13 of Subpart A of
Part 303 of Title 34 of the Code of
Federal Regulations, published 6/22/89.

This adoption by reference does not
include subsequent amendments and
editions of the referenced material.

(39) "Hearing" means, unless otherwise
specified, a contested case hearing
under G.S. 150B, Article 3.

(40) "High risk children" means those from
birth to 36 months of age for whom
there is clinical evidence of conditions
which have a high probability of result-
ing in developmental delay or atypical
development and for whom there is
clinical evidence that developmental or
therapeutic intervention may be neces-
sary. There are two categories of high
risk children. These are:

(A) High Risk-Established: Diagnosed or
documented physical or mental condi-
tions which are known to result in
developmental delay or atypical devel-
opment as the child matures. Such
conditions are limited to the follow-

ing:

(i) chromosomal anomaly or genetic
disorders associated with develop-
mental deficits;

(ii) metabolic disorders associated
with developmental deficits;

(iii) infectious diseases associated with
developmental deficits;

(iv) neurologic disorders;

(v) congenital malformations;

(vi) sensory disorders; or

(vii) toxic exposure.
(B) High Risk-Potential: Documented
presence of indicators which are
associated with patterns of develop-
ment and which have a high probabili-
ty of meeting the criteria for develop-
mental delay or atypical development
as the child matures. There shall be
documentation of at least three of the
parental or family, neonatal, or
postneonatal risk conditions as defined
on page 12 in the 1990 publication,
"NORTH CAROLINA CHILD SER-
VICE COORDINATION PRO-
GRAM" available from the Division
of Maternal and Child Health, Depart-
ment of Environment, Health, and
Natural Resources, PO Box 27687,
Raleigh, NC 27611-7687. This

adoption by reference does not in-
clude subsequent amendments and
editions of the referenced material.
These conditions are as follows:

(i) maternal age less than 15 years;

(ii) maternal PKU;

(iii) mother HIV positive;

(iv) maternal use of anticonvulsant,
antineoplastic or anticoagulant
drugs;

(v) parental blindness;

(vi) parental substance abuse;

(vii) parental mental retardation;

(viii) parental mental illness;

(ix) difficulty in bonding between
parent and infant;

(x) difficulty in providing basic
parenting;

(xi) lack of stable housing;

(xii) lack of familial and social sup-
port:

(xiii) family history of childhood deaf-
ness;

(xiv) maternal hepatitis B;

(xv) birth weight less than 1500 grams;

1281

7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

(xvi) gestational age less than 32

weeks;
(xvii) respiratory distress (mechanical

ventilator greater than six hours);
(xviii)asphyxia;
(xix) hypoglycemia (less than 25

mg/dl);
(xx) hyperbilirubinemia (greater than

20 mg/dl);
(xxi) intracranial hemorrhage;
(xxii) neonatal seizures;
(xxiii)major congenital anomalies;
(xxiv)CNS infection or trauma;
(xxv) congenitally acquired infection;
(xxvi)suspected visual impairment;
(xxvii)suspected hearing impairment;
(xxviii)no well child care by age six

months;
(xxix)failure on standard developmental

or sensory screening test;
(xxx) significant parental concern; and
(xxxi)suspected abuse or neglect, who:

(41) "Hours of operation" means an indica-
tion of the minimum operational hours
that a service is expected to be avail-
able to clients, but not prohibiting the
typical closing of a service to accom-
modate holidays, vacations, staff devel-
opment activities and weather and
facility-related conditions but taking
into consideration the type of service
being provided.

(42) "ICF/MR" (Intermediate Care Facili-
ty/Mentally Retarded) means a facility
certified as having met federal ICF/MR
requirements and which provides
24-hour personal care, habilitation,
developmental and supportive services
to persons with mental retardation or
related conditions.

(43) "Incident" means any happening which
is not consistent with the routine opera-
tion of the facility or the routine care of
a client and that is likely to lead to
adverse effects upon a client.

(44) "Infant" means an individual from birth
through two years of age.

(45) "Legend drug" means a drug that can-
not be dispensed without a prescription.

(46) "License" means a permit to operate a
facility which is issued by DFS under
G.S. 122C, Article 2.

(47) "Medication" means a substance recog-
nized in the official "United States
Pharmacopoeia" or "National Formu-

lary" intended for use in the diagnosis,
mitigation, treatment or prevention of
disease.

(48) "Minor client" means a person under
1 8 years of age who has not been mar-
ried or who has not been emancipated
by a decree issued by a court of compe-
tent jurisdiction or is not a member of
the armed forces.

(49) "Neighborhood" - See "residential
setting".

(50) "Nurse" means a person licensed to
practice in the State of North Carolina
either as a registered nurse or as a
licensed practical nurse.

(51) "Operator" means the designated agent
of the governing body who is responsi-
ble for the management of a licensable
facility.

(52) "Outpatient" or "Outpatient service"
means the same as periodic service.

(53) "Parent" means the legally responsible
person unless otherwise clear from the
context.

(54) "Periodic service" means a service
provided through short, recurring visits
for persons who are mentally ill, devel-
opmentally disabled or substance abus-
ers.

(55) "Physical examination" means the
procedures used by a physician or
physician extender on behalf of a physi-
cian to determine the physiological and
anatomical condition of the client.
Physical examination also means medi-
cal examination.

(56) "Physician extender" means a nurse
practitioner or a physician assistant
approved to perform medical acts by
the Board of Medical Examiners of the
State of North Carolina.

(57) "Preschool age child" means a child
from three through five years of age.

(58) "Private facility" means a facility not
operated by or under contract with an
area program.

(59) "Program evaluation" means the sys-
tematic documented assessment of
program activity to determine the effec-
tiveness, efficiency and scope of the
system under investigation, to define its
strengths and weaknesses and thereby to
provide a basis for informed
decision-making.

(60) "Provider" means an individual, agency

7:13 NORTH CAROLINA REGISTER October 1, 1992

1282

PROPOSED RULES

or organization that provides mental
health, mental retardation or substance
abuse services.

(61) "Psychiatric nurse" means an individual
who is licensed to practice as a regis-
tered nurse in the State of North Caroli-
na by the North Carolina Board of
Nursing and who is a graduate of an
accredited master's level program in
psychiatric mental health nursing with
two years of experience, or has a
master's degree in behavioral science
with two years of supervised clinical
experience, or has four years of experi-
ence in psychiatric mental health nurs-
ing.

(62) "Psychiatric social worker" means an
individual who holds a master's degree
in social work from an accredited
school of social work and has two years
of clinical social work experience.

(63) "Psychiatrist" means an individual who
is licensed to practice medicine in the
State of North Carolina and who has
completed an accredited training pro-
gram in psychiatry.

(64) "Psychotherapy" means a form of
treatment of mental illness or emotional
disorders which is based primarily upon
verbal or non-verbal communication
with the patient. Treatment is provided
by a trained professional for the pur-
pose of removing or modifying existing
symptoms, of attenuating or reversing
disturbed patterns of behavior, and of
promoting positive personality growth
and development.

(65) "Psychotropic medication" means medi-
cation with the primary function of
treating mental illness or personality or
behavior disorders. These medications
include, but are not limited to.
antipsychotics. antidepressants,
neuroleptics, lithium and minor tran-
quilizers.

(66) "Qualified alcoholism professional"
means an individual who is certified by
the North Carolina Substance Abuse
Professional Certification Board or who
is a graduate of a college or university
with a baccalaureate or advanced de-
gree in a human service related field
with documentation of at least two
years of supervised experience in the
profession of alcoholism counseling.

(67) "Qualified developmental disabilities
professional" means an individual hold-
ing at least a baccalaureate degree in a
discipline related to developmental
disabilities, and at least two years of
supervised habilitative experience in
working with the mentally retarded or
otherwise developmentally disabled or
holding a baccalaureate degree in a
field other than one related to develop-
mental disabilities and having three
years of supervised experience in work-
ing with the mentally retarded or other-
wise developmentally disabled.

(68) "Qualified drug abuse professional"
means an individual who is certified by
the North Carolina Substance Abuse
Professional Certification Board or who
is a graduate of a college or university
with a baccalaureate or advanced de-
gree in a human service related field
with documentation of at least two
years of supervised experience in the
profession of drug abuse counseling.

(69) "Qualified mental health professional"
means any one of the following: psychi-
atrist, psychiatric nurse, practicing
psychologist, psychiatric social worker,
an individual with at least a master's
degree in a related human service field
and two years of supervised clinical
experience in mental health services or
an individual with a baccalaureate
degree in a related human service field
and four years of supervised clinical
experience in mental health services.

(70) "Qualified nutritionist" means an indi-
vidual who has a Master's degree in
nutrition, nutrition education or public
health nutrition and who may or may
not be a registered dietitian.

(71) "Qualified substance abuse profession-
al" means an individual who is:

(A) certified by the North Carolina Sub-
stance Abuse Professional Certifica-
tion Board; or

(B) a graduate of a college or university
with a baccalaureate or advanced
degree in a human service related
field with documentation of at least
two years of supervised experience in
the profession of alcoholism and drug
abuse counseling.

(72) "Registered dietitian" means an individ-
ual who has successfully completed a

1283

7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

national examination for the Commis-
sion on Dietetic Registration and main-
tains registration with that commission
through approved continuing education
activities and events.

(73) "Rehabilitation" means training, care
and specialized therapies undertaken to
assist a client to reacquire or maximize
any or all lost skills or functional abili-
ties.

(74) "Research" means inquiry involving a
trial or special observation made under
conditions determined by the investiga-
tor to confirm or disprove a hypothesis,
or to explicate some principle or effect.
The term "research" as used in this
document means research which is not
standard or conventional; involves a
trial or special observation which would
place the subject at risk for injury
(physical, psychological or social inju-
ry), or increase the chance of disclosure
of treatment; utilizes elements or steps
not ordinarily employed by qualified
professionals treating similar disorders
of this population; or is a type of proce-
dure that serves the purpose of the
research only and does not include
treatment designed primarily to benefit
the individual.

(75) "Residential setting" means a living
area or zone in which the primary
purpose is family residential living and
which may be located in an area zoned
either urban residential or rural.

(76) "Respite discharge" means that point in
time when no additional incidents of
respite services are anticipated.

(77) "Respite episode" means an uninterrupt-
ed period of time during which a client
receives respite services.

(78) "Screening" means an assessment ser-
vice which provides for a brief apprais-
al of each individual who presents
himself for services, in order to deter-
mine the nature of the individual's
problem and his need for services.
Screening may also include referral to
other appropriate community resources.

(79) "Secretary" means the Secretary of the
Department as defined in G.S. 122C-3.

(80) "Service" means an activity or interac-
tion intended to benefit another, with,
or in behalf of, an individual who is in
need of assistance, care, habilitation.

intervention, rehabilitation or treatment.

(81) "Severely physically disabled person"
means for the purpose of ADAP (Adult
Developmental Activity Program) a
person:

(A) who has a severe physical disability
which seriously limits his functional
capabilities (mobility, communication,
self-care, self-direction, work toler-
ance or work skills);

(B) who has one or more physical disabil-
ities resulting from amputation, arthri-
tis, blindness, cancer, cerebral palsy,
cystic fibrosis, deafness, heart dis-
ease, hemiplegia, hemophilia, respira-
tory or pulmonary dysfunction, multi-
ple sclerosis, muscular dystrophy,
musculoskeletal disorders, neurologi-
cal disorders (including stroke and
epilepsy), paraplegia, quadriplegia,
and other spinal cord conditions,
sickle cell anemia and end stage renal
disease; and

(C) whose habilitation or rehabilitation
can be expected to require multiple
habilitation or rehabilitation services
over an extended period of time.

(82) "Sheltered employment" means a
facility's provision of work and work
training by:

(A) subcontracting from industries in the
community and bringing work to the
facility to be performed; or

(B) manufacturing its own products in the
facility. Clients served in a sheltered
employment model are those who
consistently achieve earning levels
exceeding one-half of the minimum
wage but who are not ready for inde-
pendent employment activities.

(83) "Staff member" means any individual
who is employed by the facility.

(84) "Substantially mentally retarded person"
means for the purpose of ADAP a
person who is mentally retarded to the
degree of seriously limiting his func-
tional capabilities, whose habilitation or
rehabilitation can be expected to extend
over a period of time, and including:

(A) moderately mentally retarded persons;

(B) severely mentally retarded persons;

(D) mentally retarded persons with a
handicapping condition so severe as to

7:13 NORTH CAROLINA REGISTER October 1, 1992

1284

PROPOSED RULES

lack the potential for employment at
this time, either in a sheltered or
competitive setting. In addition, such
individuals must have a deficit in
self-help, communication, socializa-
tion or occupational skills and be
recommended by the vocational reha-
bilitation counselor for consideration
of placement in an ADAP.

(85) "Support services" means services
provided to enhance an individual's
progress in his primary treat-
ment/habilitation program.

(86) "Supported employment" means a
day/night service which involves paid
work in a job which would otherwise
be done by a non-disabled worker.
Supported employment is carried out in
an integrated work site where a small
number of people with disabilities work
together and where the work site is not
immediately adjacent to another pro-
gram serving persons with disabilities.
It includes intensive involvement of
staff working with the individuals in
these integrated settings.

(87) "Toddler" means an individual from
one through three years of age.

(88) "Treatment" means the process of
providing for the physical, emotional,
psychological and social needs of cli-
ents through services.

(89) "Treatment; habilitation plan" means a
plan in which one or more profession-
als, privileged in accordance with 10
NCAC 14K .0319, working with the
client and, in some cases, family mem-
bers or other service providers, docu-
ment which interventions will be pro-
vided and the goals, objectives and
strategies that will be followed in pro-
viding services to the client.

(90) "Twenty-four hour facility in which
medical care is an integral component"
means a facility in which:

(A) the medication needs of clients may
be evaluated, medication prescribed
and laboratory tests ordered to assist
in the diagnosis, treatment and moni-
toring of problems associated with the
mental health, mental retardation or
other developmental disabilities or
substance abuse disorder of clients;
and

(B) proper referral of the client is made to

medical specialists when needed.
(91) "Twenty-four hour service" means a
service which is provided to a client on
a 24-hour continuous basis.

Statutory Authority G.S.
143B-147.

122C-3; 122C-26;

SECTION .0300 - FACILITY AND PRO-
GRAM MANAGEMENT

.0314 ASSESSMENT

(a) The governing body shall develop and
implement written policies regarding admission
assessments for clients in each facility.

(b) Each facility shall complete an initial admis-
sion assessment for each client prior to the deliv-
ery of treatment/habilitation services. The initial
assessment shall include:

(1) the presenting problem or reason for
admission;

(2) the client's needs and strengths, and
when appropriate, the needs and
strengths of family members who may
contribute to the services provided to
the client;

(3) a provisional or admitting diagnosis
with an established diagnosis deter-
mined within 30 days of admission,
except for clients admitted to a detoxifi-
cation or other 24-hour medical pro-
gram for any length of time, who shall
have an established diagnosis upon
admission;

(4) a description of current status including
the following, when applicable:

(A) mental status, including suicide poten-
tial;

(B) developmental condition or impair-
ment;

(D) legal status or circumstances;

(E) medical condition; and

(F) family and other support systems;

(5) a description of the client's condition
from family or significant others, when
available; and

(6) the disposition, including referrals and
recommendations.

(c) Data gathered during a screening or from
other sources within 30 days prior to admission
may be used to complete the assessment.

(d) For a client expected to receive services for
more than 30 days, the admission assessment shall
include the following within 30 days of admission:

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7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

(1) a social and family history;

(2) a medical history; and

(3) when applicable, histories and assess-
ments as follows:

(A) psychiatric, including previous treat-
ment;

(B) substance abuse, including previous
treatment;

(D) educational;

(E) auditory and visual;

(F) nutritional; and

(G) vocational.

(e) For all facilities serving infants and toddlers
with or at risk for developmental disabilities,
delays or atypical development, except for respite,
there shall be:

(1) an assessment of levels of physical,
(including vision and hearing), language
and speech, communication, cognitive,
psychosocial social and emotional and
self help adaptive skills development;

(2) a determination of the child's unique
strengths and needs in terms of these
areas of development and identification
of services appropriate to meet those
needs;

(3) if requested by the family, a determina-
tion of the strength s and needs of the
family related to enhancing the develop
ment of the child, of the resources,
priorities and concerns of the family,
and the supports and services necessary
to enhance the family's capacity to meet
the developmental needs of their infant
or toddler with or at risk for a disabili-
ty. The family - focused and directed
assessment shall be based on informa-
tion provided through a personal inter-
view and incorporate the family's de-
scription of the strengths and needs;
these resources, priorities, and concerns
in this area;

(4) procedures developed and implemented
to ensure participation by the client's
family or the legally responsible per-
son;

(5) tests and other evaluation materials and
procedures administered in the native
language of the parents or other mode
of communication unless it is clearly
not feasible to do so;

(6) assessment procedures and materials
which are selected and administered so

as not to be racially or culturally dis-
criminatory;

(7) no single procedure used as the sole
criterion for determining a child's
eligibility;

(8) an integrated assessment process which
involves at least two persons, each
representing a different discipline or
profession, with the specific number
and types of disciplines based on the
particular needs of the child; : — One of
the disciplines shall include a physician,
phy s ician' s a s si s tant or nurse practitio
ncr,

(A) The assessment shall include current
medical information provided by a
physician, physician's assistant, or
nurse practitioner; however, a physi-
cian, physician's assistant, or nurse
practitioner is not required as one of
the disciplines involved in the assess-
ment; and

(B) Further information regarding the
assessment may be found in the docu-
ment "Eligibility Determination for
the Infants-Toddler Program", pub-
lished by the Department of Environ-
ment, Health, and Natural Resources.

(9)
(10)

(A)
(B)

an evaluation process based on in-
formed clinical opinion;
an assessment process completed within
45 calendar days from the date of refer-
ral. The referral is initiated by a writ-
ten request for these services made to
any one of the public agencies partici-
pating in the PL 99-457 Interagency
Agreement. The request becomes a
referral when the area program deter-
mines that all of the following is avail-
able:
the family's written consent to receive
this service;

sufficient background information to
enable the agency receiving the refer-
ral to establish communication
through a telephone call or home
visit;

reason for referral, date of referral
and agency or individual making
referral ;

child and family identifying informa-
tion such as names, child's birthdate
and primary physician; and
summary of any pre-existing child and
family screening or assessment infor-

7:13 NORTH CAROLINA REGISTER October 1, 1992

1286

PROPOSED RULES

mation;

(11) a 45 calendar day completion require-
ment which may be extended in excep-
tional circumstances, such as, the
child's health assessment is being com-
pleted out-of-state, or family desires
make it impossible to complete the
assessment within the time period. The
specific nature and duration of these
circumstances which prevent completion
within 45 days and the attempts made
by the provider to complete the assess-
ment shall be documented; and

( 12) the child's family or legally responsible
person shall be fully informed of the
results of the assessment process.

Statutory Authority G.S. 122C-26; 130 A- 144;
130A-152; 143B-147.

.0315 TREATMENT/HABILITATION
PLANNING AND
DOCUMENTATION

(a) The governing body shall develop and
implement written policies regarding individual
treatment/habilitation plans and the qualifications
of staff, based on education and experience, who
will be responsible for implementation of such
plans.

(b) A treatment/habilitation plan shall be based
upon an assessment of the client's condition, assets
and needs, and the resources to meet these needs,
and shall be developed in partnership with the
client.

(c) The parent or the legally responsible person
of a minor shall have the opportunity to participate
in the development and implementation of the
minor client's individual treatment/ habilitation
plan.

(d) The parent, with client consent, or the
legally responsible person of an adult shall have
the opportunity to participate in the development
and implementation of the adult client's individual
treatment/habilitation plan.

(e) Clinical responsibility for the development
and implementation of the treatment/habilitation
plan shall be designated.

(f) Initial treatment/habilitation objectives shall
be documented, if services are to be provided,
prior to the establishment and implementation of
the comprehensive treatment/habilitation plan.

(g) Except as provided in Paragraphs (h)
through (j) of this Rule, a comprehensive plan
shall be developed and initiated within 30 days of
admission for clients who are expected to receive

services from the facility beyond 30 days. The
plan shall include, as appropriate to the client's
needs:

(1) documentation of the established diag-
nosis;

(2) time-specific, measurable goals for
treatment/habilitation;

(3) general strategies or procedures to be
undertaken in order to meet goals and
the direct care staff responsible for
implementation;

(4) time-specific, measurable education or
treatment goals for family or significant
others, if applicable; and

(5) a schedule for time-specific planned
reviews, which may be set, in addition
to those required in Paragraph (k) of
this Rule.

(h) For all facilities serving infants and toddlers

with or at risk for developmental disabilities,

delays or atypical development, except for respite:

(1) there shall be a habilitation plan which

is referred to as the Individualized

Family Service Plan (IFSP) which shall

include:

(A) a description of the child's present
health status and levels of physical
(including vision and hearing), ten-
guage — and s peech, communication.
cognitive, psychosocial, social and
emotional, and self help skills adap-
tive development;

(B) with the concurrence of the family, a
description of the family' s strengths
and needs — related to enhancing the
development of the child; the resourc-
es, priorities and concerns of the
family and the supports and services
necessary to enhance the family's
capacity to meet the developmental
needs of their infant and toddler with
or at risk for a disability;

(D) criteria and time frames to be used to
determine progress towards goals;

(E) planned habilitation procedures related
to the goals;

(F) a statement of the specific early inter-
vention services to be provided to
meet the identified child and family
needs, the initiation dates, frequency
and method, duration, intensity and
location (including the most natural
environment) of service delivery, and

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7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

the persons or agencies responsible;

(G) the designation of the staff member
responsible for service coordination;

(H) the plans for transition into services
which are the responsibility of the
N.C. Department of Public Instruc-
tion, when applicable;

(I) the payment arrangements for the
specific services delineated in Sub-
paragraph (h)(1)(F) of this Rule;

(J) a description of medical and other
services needed by the child, but
which are not required under P.L.
99-457, and the strategies to be pur-
sued to secure those services through
public or private resources.

(2) The IFSP shall be:

(A) reviewed on at least a semi-annual
basis or more frequently upon the
family's request; and

(B) revised as appropriate, but at least
annually.

(3) The initial development and annual
revision process for the IFSP for infants
and toddlers shall include participation
by:

(A) the parent or parents of the child;

(B) other family members, as requested
by the parent;

(D) the provider of the early intervention
services;

(E) the service coordinator designated for
the family, if different from the pro-
vider of the early intervention servic-
es; and

(F) the provider of the assessment ser-
vice, if different from the provider of
the early intervention services.

(4) The IFSP review shall be arranged and
written notice provided to families early
enough to promote maximum opportu-
nities for attendance. The semi-annual
review process shall include participa-
tion by persons identified in Subpara-
graphs (h)(3)(A) through (E) of this
Rule. If any of these individuals are
unable to attend one of the development
or review meetings, arrangements shall
be made for the person's involvement
through other means such as participa-
tion in a telephone conference call,
having a knowledgeable authorized

representative attend the meeting or
making pertinent records available at
the meeting.

(5) The IFSP for infants and toddlers is
based upon the results of the assessment
referenced in 10 NCAC 14K .0314(e).
However, early intervention services
may commence before completion of
this assessment if parental consent is
obtained, the assessment is completed
within the time period referenced in 10
NCAC 14K .0314(e), and an interim
IFSP is developed. The interim IFSP
shall include:

(A) the name of the service coordinator
who will be responsible for the imple-
mentation of the IFSP and coordina-
tion with other agencies and individu-
als;

(B) goals for the child and family when
recommended;

(D) suggested activities that may be car-
ried out by the family members.

(6) Each facility or individual who has a
direct role in the provision of early
intervention services specified in the
IFSP is responsible for making a good
faith effort to assist each eligible child
in achieving the goals set forth in the
IFSP.

(7) The IFSP shall be developed within 45
days of referral for those children
determined to be eligible. The referral
shall be as defined in 10 NCAC 14K
.0314(e)(ll).

£8) The contents of the IFSP must be fully
explained to the parents, and informed
written consent from the parents must
be obtained prior to the provision of
early intervention services described in
the plan. If the parents do not provide
consent with respect to a particular
early intervention service, that service
may not be provided. The early inter-
vention services to which parental
consent is obtained must be provided.
(i) The goals for a client who receives services
from facilities providing day activity or alternative
family living, half-way house, therapeutic camp or
group home services in which the supervision and
therapeutic intervention are limited to sleeping
time, home living skills and leisure time activities,
may be limited to life-skill, social or recreational

7:13 NORTH CAROLINA REGISTER October 1, 1992

1288

PROPOSED RULES

goals.

(j) The goals for a client who receives services
from a community respite facility may be limited
to the special needs of the client, including medi-
cations to be administered, dietary considerations
and expectations regarding other services.

(k) A full review of each client's treat-
ment/habilitation plan shall be conducted at least
annually by the responsible professional in accor-
dance with the facility's quality assurance plan, as
determined by 10 NCAC 14K .0319. The review
shall include:

( 1 ) the client's continuing need for service;
and

(2) a continuation or update of the client's
treatment/habilitation plan as defined in
Paragraph (g) of this Rule.

Statutory Authority G.S. 122C-26: 143B-147.

SUBCHAPTER 140 - LICENSURE RULES

FOR FACILITIES SERVING MORE THAN

ONE DISABILITY

SECTION .0100 - ALTERNATIVE FAMILY
LIVLNG

.0106 SERVICE RESPONSIBILITIES

(a) When the governing body is not the provider
of services, it shall attempt to match the client's
needs with the provider.

(b) Each governing body shall maintain an
application on each provider which includes the
following:

(1) full name of each person living in the
facility:

(2) place, telephone number and hours of
employment for those family members
who will be providing alternative family
living services;

(3) address, directions to and telephone
number of residence; and

(4) descriptions of sleeping arrangements
for the client.

(c) Each governing body shall have a written
agreement with each provider which includes but
is not limited to the following:

(1) the responsibility of the provider;

(2) confidentiality requirements; and

(3) responsibility and procedures for secur-
ing emergency services.

(d) Information regarding the client's specific
needs or conditions shall be given to the provider
prior to admission.

(e) The governing body shall maintain a signed

copy of the agreement in the files, and a A signed
copy of the agreement shall be given to the provid-
er.

(f) Each governing body shall furnish each
provider with a form for recording illness, acci-
dent or medical concerns, including administration
of medication. This form shall be maintained by
the governing body in the client's record.

Statutory Authority G.S. 122C-26; 143B-147.

SUBCHAPTER 14Q - GENERAL RIGHTS

SECTION .0300 - GENERAL CIVIL, LEGAL
AND HUMAN RIGHTS

.0303 INFORMED CONSENT

(a) Each client, or legally responsible person,
shall be informed about:

(1) the alleged benefits, potential risks, and
possible alternative methods of treat-
ment/habilitation; and

(2) the length of time for which the consent
is valid and the procedures that are to
be followed if he chooses to withdraw
consent. The length of time for a
consent for the planned use of a restric-
tive intervention shall not exceed six
months.

(b) A consent required in accordance with G.S.
122C-57(f) or for planned interventions by the
Rules in Subchapter 14R. Section .0100. shall be
obtained in writing. Other procedures requiring
written consent shall include, but are not limited
to, the prescription or administration of the follow-
ing drugs:

( 1 ) Antabuse; and

(2) Depo-Provera when used for non-FDA
approved uses.

(c) Each voluntary client or legally responsible
person has the right to consent or refuse
treatment/habilitation in accordance with G.S.
122C-57(d). A voluntary client's refusal of con-
sent shall not be used as the sole grounds for
termination or threat of termination of service
unless the procedure is the only viable treat-
ment/habilitation option available at the facility.

(d) Documentation of informed consent shall be
placed in the client's record.

Statutory Authority G.S. 122C-51; 122C-57;
131E-67; 143B-147.

SUBCHAPTER 14R - TREATMENT OR
HABILITATION RIGHTS

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7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

SECTION .0100 - PROTECTIONS REGARD-
ING INTERVENTION PROCEDURES

.0104 SECLUSION, RESTRAINT AND
ISOLATION TIME OUT

(a) This Rule governs the use of restrictive
interventions which shall include:

(1) seclusion:

(2) physical restraint, excluding protective
devices; and

(3) isolation time-out.

(b) The use of restrictive interventions shall be
limited to:

(1) emergency situations, in order to termi-
nate a behavior or action in which a
client is in imminent danger of abuse or
injury to self or other persons or when
substantial property damage is occur-
ring; or

(2) as a planned measure of therapeutic
treatment as specified in Paragraph (g)
of this Rule.

(c) Restrictive interventions shall not be em-
ployed as retaliation or for the convenience of
staff. Restrictive interventions shall not be used in
a manner that causes harm or abuse.

(d) In accordance with Rule .0101 of Subchapter
14Q, the governing body shall have policy that
delineates the permissible use of restrictive inter-
ventions within a facility.

(e) Within a facility where restrictive interven-
tions may be used, the policy and procedures shall
be in accordance with the provisions of Subpara-
graph (1) or (2) of this Paragraph.

(1) The governing body of the facility may
develop its own policy. Such policy
and facility procedures shall be submit-
ted to and approved by the Commission
and shall ensure:

(A) timely notice and explanations to the
person who is legally responsible;

(B) valid opportunities to consent to or
refuse planned interventions;

(C) the intervention is justified, properly
time-limited, and that appropriate
positive and less restrictive alterna-
tives are thoroughly, systematically
and continuously considered and used;

(D) when the restrictive intervention is
used on a recurring or planned basis,
it will be incorporated into a treat-
ment/habilitation plan;

(E) implementation by trained staff, close-
ly supervised by a qualified profes-
sional;

(F) manner, conditions and location of the
intervention are safe and humane;

(G) implementation is monitored and the
monitoring results are disseminated to
assure follow-through, continuing
justification and timely adjustment to
meet changing circumstances; and

(H) that the safeguards in this Rule are
documented.
(2) If the governing body chooses not to
develop its own policy, facility policy
shall include provisions that specify:

(A) the process for identifying and privi-
leging facility employees who may
authorize and implement restrictive
interventions;

(B) the duties and responsibilities of
qualified or responsible professionals
regarding the use of restrictive inter-
ventions;

(D) the person responsible for the notifi-
cation of others when restrictive
interventions are used; and

(E) the person responsible for the identifi-
cation of a client with a reasonably
foreseeable physical consequence to
the use of physical restraint and, in
such cases there shall be procedures
regarding:

(i) documentation if a client with
physical disability or past surgical
procedures that would make af-
fected nerves and bones sensitive
to injury; and
(ii) the identification and documenta-
tion of alternative emergency
procedures, if needed.
(f) If the governing body chooses to comply
with Subparagraph (e)(2) of this Rule, the follow-
ing provisions shall be applicable:

(1) Any room used for seclusion or isola-
tion time-out shall meet the following
criteria:

(A) the room shall be designed and con-
structed to ensure the health, safety
and well-being of the client;

(B) the floor space shall not be less than
50 square feet, with a ceiling height
of not less than eight feet;

7:13 NORTH CAROLINA REGISTER October 1, 1992

1290

PROPOSED RULES

not produce toxic fumes if burned;

(D) the walls shall be kept completely free
of objects;

(E) a lighting fixture, equipped with a
minimum of a 75 watt bulb, shall be
mounted in the ceiling and be
screened to prevent tampering by the
client;

(F) one door of the room shall be
equipped with a window mounted in a
manner which allows inspection of the
entire room;

(G) glass in any windows shall be impact
resistant and shatterproof;

(H) the room temperature and ventilation
shall be comparable and compatible
with the rest of the facility; and

(I) in a lockable room the lock shall be
interlocked with the fire alarm system
so that the door automatically unlocks
when the fire alarm is activated if the
room is to be used for seclusion.

(2) Whenever a restrictive intervention is
utilized, documentation shall be made
in the client record to include, at a
minimum:

(A) notation of the frequency, intensity
and duration of the behavior which
led to the intervention, and any pre-
cipitating circumstance contributing to
the onset of the behavior;

(B) the rationale for the use of the inter-
vention, which also addresses the
inadequacy of less restrictive interven-
tion techniques;

(D) a description of accompanying posi-
tive methods of intervention; and

(E) signature and title of the facility em-
ployee who initiated, and of the em-
ployee who further authorized, the
use of the intervention.

(3) The emergency use of restrictive inter-
ventions shall be limited, as follows:

(A) a facility employee privileged to
administer emergency interventions
may employ such procedures for up
to 15 minutes without further authori-
zation;

(B) the continued use of such interven-
tions shall be authorized only by the
responsible professional or another
qualified professional who is privi-
leged to use the restrictive interven-

tion based on experience and training;

(C) the responsible or qualified profes-
sional shall meet with and conduct an
assessment of the client and write a
continuation authorization as soon as
possible after the time of initial em-
ployment of the intervention. If the
responsible professional or a qualified
professional is not immediately avail-
able to conduct an assessment of the
client, but concurs that the interven-
tion is justified after discussion with
the facility employee, continuation of
the intervention may be verbally
authorized until an on-site assessment
of the client can be made; and

(D) a verbal authorization shall not exceed
24 hours after the time of initial
employment of the intervention.

(4) The following precautions and actions
shall be employed whenever a client is
in:

(A) seclusion or physical restraint, exclud-
ing protective devices: periodic
observation of the client shall occur at
least every 15 minutes, or more often
as necessary, to assure the safety of
the client; appropriate attention shall
be paid to the provision of regular
meals, bathing, and the use of the
toilet; and such observation and atten-
tion shall be documented in the client
record.

(B) isolation time-out; there shall be a
facility employee in attendance with
no other immediate responsibility than
to monitor the client who is placed in
isolation time-out; there shall be
continuous observation and verbal
interaction with the client when ap-
propriate; and such observation shall
be documented in the client record.

(C) physical restraint, excluding protec-
tive devices, and the client may be
subject to injury: a facility employee
shall remain present with the client
continuously.

(5) The use of a restrictive intervention
shall be discontinued as soon as thera-
peutically appropriate but in no case
later than 30 minutes after the client
gains behavioral control. If the client is
unable to gain behavioral control within
the time frame specified in the authori-
zation of the intervention, a new autho-

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7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

rization must be obtained.

(6) The written approval of the designee of
the governing body shall be required
when a restrictive intervention is uti-
lized for longer than 24 continuous
hours.

(7) The use of a restrictive intervention in
excess of 24 continuous hours shall be
considered a restriction of the client's
rights as specified in G.S. 122C-62(b)
or (d). The documentation require-
ments in this Rule shall satisfy the
requirements specified in G.S.
122C-62(e) for rights restrictions.

(8) When any restrictive intervention is
utilized for a client, notification of
others shall occur as follows:

(A) those to be notified as soon as possi-
ble but no more than 72 hours after
the behavior has been controlled to
include:

(i) the treatment or habilitation team,
or its designee, after each use of
the intervention; and

(ii) a designee of the governing body.

(B) in a timely fashion, of the legally
responsible person of a minor client
or an incompetent adult client when
such notification has been requested.

(9) The facility shall conduct reviews and
reports on any and all use of restrictive
interventions, including:

(A) a regular review by a designee of the
governing body;

(B) an investigation of any unusual or
possibly unwarranted patterns of
utilization; and

(i) name of the client;
(ii) name of the responsible profes-
sional;
(iii) date of each intervention;
(iv) time of each intervention;
(v) type of intervention;
(vi) duration of each intervention; and
(vii) reason for use of the intervention.
(10) Nothing in this Rule shall be interpreted
to prohibit the use of voluntary restric-
tive interventions at the client's request;
however, the procedures in this Rule
shall apply with the exception of Sub-
paragraph (f)(3) of this Rule.
(g) The restrictive intervention shall be consid-
ered a planned intervention and shall be included

in the client's treatment/habilitation plan whenever
it is used:

(1) more than four times, or for more than
40 hours, in 30 consecutive days;

(2) in a single episode for 24 or more
continuous hours in an emergency; or

(3) as a measure of therapeutic treatment
designed to reduce dangerous, aggres-
sive, self-injurious, or undesirable
behaviors to a level which will allow
the use of less restrictive treatment or
habilitation procedures.

(h) When a restrictive intervention is used as a
planned intervention, facility policy shall specify:

(1) The requirement that a consent or
approval shall be considered valid for
no more than six months and that the
decision to continue the specific inter-
vention shall be based on clear and
recent behavioral evidence that the
intervention is having a positive impact
and continues to be needed;

(2) Prior to the initiation or continued use
of any planned intervention, the follow-
ing written notifications, consents and
approvals shall be obtained and docu-
mented in the client record:

(A) approval of the plan by the responsi-
ble professional and the treatment and
habilitation team, if applicable, shall
be based on an assessment of the
client and a review of the documenta-
tion required by Subparagraph
(e)(1)(H) or (f)(2) of this Rule, which-
ever is applicable;

(B) consent of the client or legally respon-
sible person, after the specific inter-
vention and the reason for it have
been explained in accordance with 10
NCAC 14Q .0201;

(C) notification of a client advocate that
the specific intervention has been
planned for the client and the ratio-
nale for utilization of the intervention;
and

(D) physician approval, after an initial
medical examination, when the plan
includes a specific intervention with
reasonably foreseeable physical conse-
quences. In such cases, periodic
planned monitoring by a physician
shall be incorporated into the plan.

(3) Within 30 days of initiation of the use
of a planned intervention, the Interven-
tion Advisory Committee established in

7:13 NORTH CAROLINA REGISTER October 1, 1992

1292

PROPOSED RULES

accordance with Rule .0107 of this
Section, by majority vote, may recom-
mend approval or disapproval of the
plan or may abstain from making a
recommendation;

(4) At any time during the use of a planned
intervention, if requested, the Interven-
tion Advisory Committee shall be given
the opportunity to review the treat-
ment/habilitation plan;

(5) If any of the persons or committees
specified in Subparagraphs (h)(2) or (3)
of this Rule do not approve the initial
use or continued use of a planned inter-
vention, the intervention shall not be
initiated or continued. Appeals regard-
ing the resolution of any disagreement
over the use of the planned intervention
shall be handled in accordance with
governing body policy;

(6) Documentation in the client record
regarding the use of a planned interven-
tion shall indicate:

(A) the weekly evaluation of the planned
intervention by staff who implement
the intervention; and

(B) the — bi weekly review.^ every two
weeks, by a qualified professional.

(4) protective devices are cleaned at regular
intervals; and

(5) for facilities operated by or under con-
tract with an area program, the utiliza-
tion of protective devices in the treat-
ment/habilitation plan shall be subject
to review by the Client Rights Commit-
tee, as required in JO NCAC 18L

0434. Copies of this Rule and other
pertinent Rules are published as Divi-
sion publication STANDARDS FOR
AREA PROGRAMS AND THEIR
CONTRACT AGENCIES, APSM 35- 1 ,
and may be purchased at a cost of six
dollars ($6.00) per copy, if there is

(b) The use of any protective device for the
purpose or with the intent of controlling unaccept-
able behavior shall be considered a mechanical
restraint and shall comply with the requirements of
Rule .0104 of this Section.

Statutory Authority G.S. 122C-51;
122C-60; 131E-67; 143B-147.

122C-53;

CHAPTER 18 MENTAL HEALTH: OTHER
PROGRAMS

Statutory Authority G.S. 122C-51; 122C-53;
122C-60; 122C-62; 131E-67: 143B-147.

SUBCHAPTER 18J - AREA PROGRAM
MANAGEMENT STANDARDS

.0105 PROTECTIVE DEVICES

(a) Whenever a protective device is utilized for
a client, the governing body shall develop and
implement policy to ensure that:

( 1 ) the necessity for the protective device
has been assessed and the device ap-
plied by a facility employee who has
been trained and privileged in the utili-
zation of protective devices;

(2) the protective device is the least restric-
tive appropriate measure;

(3) the client is frequently observed and
provided opportunities for toileting,
exercise, etc. as needed. When a pro-
tective device limits the client's free-
dom of movement, the client shall be
observed at least every hour. Whenev-
er the client is restrained and subject to
injury by another client, a facility em-
ployee shall remain present with the
client continuously. Observations and
interventions shall be documented in the
client record;

SECTION .0600 - STATE FACILITY
RELATIONSHIPS

.0604 RESIDENTIAL POPULATION:
GROUP HOMES FOR MR/
DP ADULTS

(a) Each area program shall assure that at least
one-half of the total resident population of all
group homes for mentally retard-
ed /developmentally disabled adults in its catchment
area is comprised of individuals who immediately
prior to their admission to a group home for
mentally retarded /developmentally disabled adults
were:

(1) residents of a state mental retardation
center, a state psychiatric hospital, a
group home for children who are men-
tally retarded /developmentally disabled .
a specialized community residential
center for children who are mentally
retarded, a group home for individuals
who are mentally retarded and
behaviorally disordered, or a certified

1293

7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

ICF/MR facility;

(2) continuity of care clients as defined in
G.S. 122C-63; or

(3) clients who had been processed and
approved for admission to a state facili-
ty-

(b) The area program may be exempt from the

requirements in Paragraph (a) of this Rule if it is
determined and approved in writing by the
Division's Chief of Developmental Disabilities
appropriate regional director that there is not a
sufficient number of clients within the catchment
area who fall within the categories listed in Para-
graph (a) of this Rule to enable the area program
to comply with the requirements of this Rule.

(c) Each area program shall maintain a written
record indicating which clients in its area-operated
or contract group homes for mentally retard-
ed /developmentallv disabled adults fall within the
categories listed in Paragraph (a) of this Rule.

Statutory Authority G.S. 122C-63; 143B-147.

SUBCHAPTER 18L - PROGRAM COMPO-
NENT OPERATIONAL STANDARDS

SECTION .1500 - EARLY INTERVENTION
SERVICES PROCEDURE SAFEGUARDS

.1525 CONSENT TO RECEIVE SERVICES

The parents of a child, eligible to receive early
intervention services, may determine whether they,
their child, or other family members will accept or
decline any type of early intervention service
without jeopardizing the right to receive other
early intervention services.

Statutory Authority G.S. 143B-147; 150B-1 (d); 20
U.S.C. Sections 1401 et. seq. , 1471 et. seq.

SUBCHAPTER 18P - OPTIONAL SERVICES

FOR INDIVIDUALS WHO

ARE MENTALLY ILL OR EMOTIONALLY

DISTURBED

SECTION .0900 - CONTRACTED INPA-
TIENT PSYCHIATRIC SERVICES
FOR CHILDREN: ADOLESCENT: ADULT
AND ELDERLY INDIVIDUALS WHO ARE
MENTALLY ILL

.0903 AREA PROGRAM/HOSPITAL
AGREEMENT

fa) A written agreement between the area pro-
gram and the general hospital or private psychiat-

ric hospital shall be developed and shall specify at
least the following:

(1) criteria for service availability for area
program patients;

(2) responsibilities of both parties related to
admission, treatment, and discharge of
patients;

(3) parties responsible for the operation of
the inpatient service;

(4) responsibilities of each party regarding
continuity of service for patients dis-
charged from the inpatient service; and

(5) provision for the exchange of informa-
tion.

(b) The written agreement shall be approved by
the Division.

Statutory Authority G.S. 122C-51; 143B-147.

SECTION .1000 - CONTRACTED STATE
HOSPITAL PSYCHIATRIC INPATIENT
SERVICES FOR CHILDREN: ADOLES-
CENT: ADULT AND ELDERLY
INDIVIDUALS WHO ARE MENTALLY ILL

.1003 AREA PROGRAM/HOSPITAL
AGREEMENT

fa) A written agreement between the area pro-
gram and the hospital shall be developed and shall
specify at least the following:

(1) criteria for service availability for area
program patients;

(2) provision of services to both voluntary
and involuntary patients;

(3) parties responsible for the operation of
the inpatient service;

(4) responsibilities of each party regarding
continuity of service for patients dis-
charged from the inpatient service; and

(5) provision for the exchange of informa-
tion. . including at least q discharge
summary, between the area program and
the inpatient service.

(b) The written agreement shall be approved by
the Division.

Statutory Authority G.S. 122C-51; 143B-147.

1\ otice is hereby given in accordance with G.S.
150B-21.2 that the DHR/Division of Medical
Assistance intends to adopt rule 10 NCAC 26B
.0123.

7:13 NORTH CAROLINA REGISTER October 1, 1992

1294

PROPOSED RULES

1 he proposed effective date of this action is
January 4. 1993.

1 he public hearing will he conducted at 1:30
p.m. on October 16, 1992 at the North Carolina
Division of Medical Assistance, 1985 Umstead
Drive, Room 132, Raleigh. NC 27603.

Keason for Proposed Action: Tins amendment
will allow Medicaid to pay for all the components
of the drug therapies, except for the drugs in a
package per diem rate. Tliis single coverage
designation simplifies access to care for Medicaid
recipients, relieving the recipient and the attending
physician from having to contact multiple agencies
to arrange care.

Ksomment Procedures: Written comments con-
cerning this amendment must be submitted by
October 31 , 1992 to: Division of Medical Assis-
tance, 1985 Umstead Drive, Raleigh, NC 27603,
ATTN: Clarence Ervin. Oral comments may be
presented at the hearing. In addition, a fiscal
impact statement is available upon written request
from the same address.

CHAPTER 26
MEDICAL ASSISTANCE

SUBCHAPTER 26B - MEDICAL
ASSISTANCE PROVIDED

SECTION .0100 - GENERAL

.0123 HOME LNFUSION THERAPY

(a) Self-administered Home Infusion Therapy
(HIT) is covered when it js medically necessary
and appropriate, and provided through an enrolled
HIT agency as prescribed by a physician. "Self-
administered" means that the patient and/or an
unpaid primary caregiver is capable, able, and
willing to administer the therapy following appro-
priate teaching and with adequate monitoring. The
following therapies are included jn this coverage
when self-administered:

Total parenteral nutrition;
Enteral nutrition;

intravenous pain management therapy,
(b) Agencies qualified to enroll as HIT provid-
ers include:

ill

Intrathecal and intravenous ehemothera-

(4) Intravenous antibiotic therapy;

(5) Pain management therapy, including
subcutaneous, epidural, intrathecal, and

ill

13]

A Medicare certified home health agen-
c_y_ located within North Carolina;
A North Carolina licensed home health
agency;

An agency with a North Carolina office
that js accredited in the provision of
home care by the Joint Commission on
Accreditation of Health Care Organiza-
tion (JCAHO) and meets the pharma-
ceutical and equipment services sections
of the accreditation requirements.
]_n addition to enrolled HIT providers, agencies
enrolled to provide durable medical equipment
may provide the supplies, equipment, and nutrient
solutions/formulae for enteral infusion therapy.

Authority G.S. 108A-25(b): 42 C.F.R. 440.230;
42 C.F.R. 4409.260.

[\otice is hereby given in accordance with G.S.
150B-21.2 that the DHR/Division of Medical
Assistance intends to amend rule cited as 10 NCAC
26H .0104.

1 he proposed effective date of this action is
January 4. 1993.

1 he public hearing will be conducted at 1:30
p.m. on November 2, 1992 at the North Carolina
Division of Medical Assistance, 1985 Umstead
Drive, Room 297, Raleigh, NC 27603.

Keason for Proposed Action: Amendment clari-
fies the practice that has been in place for many
years. This practice allows hospital based nursing
facilities with fiscal year ending September 30 and
state operated facilities with a fiscal year ending
June to file their cost report within 90 daxs after
their year ends.

Lsomment Procedures: Written comments con-
cerning this amendment must be submitted by
November 17. 1992 to: Division of Medical
Assistance, 1985 Umstead Drive. Raleigh, NC
27603, ATTN: Daphne Lyon. Oral comments may
be presented at the hearing. In addition, a fiscal
impact statement is available upon written request

1295

7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

from the same address.

CHAPTER 26
MEDICAL ASSISTANCE

SUBCHAPTER 26H - REIMBURSEMENT
PLANS

SECTION .0100 - REIMBURSEMENT FOR
NURSING FACILITY SERVICES

.0104 COST REPORTING: AUDITING AND
SETTLEMENTS

(a) Each facility that receives payments from the
North Carolina Medicaid Program must prepare
and submit a report of its costs and other financial
information, such as the working trial balance,
related to reimbursement annually. The report
must include costs from the fiscal period beginning
on October 1 and ending on September 30 and
must be submitted to the state on or before the
December 3 1 that immediately follows the Septem-
ber 30 year end. A new provider must submit a
report for the period beginning with the date of
certification and ending on September 30. Hospi-
tal based nursing facilities with a fiscal year ending
other than September 30 and State operated facili-
ties with a June fiscal year ending must file their
cost reports within 90 days after their fiscal year
ends. Facilities that fail to file their cost reports
by the due date are subject to payment suspension
until the reports are filed. The Division of Medical
Assistance may extend the deadline 30 days for
filing the report if, in its view, good cause exists
for the delay.

(b) Cost report format. The cost report must be
submitted on forms and in a format and medium
approved by the Division of Medical Assistance.
The account structure for the report is based on the
chart of accounts published by the American
Healthcare Association in 1979 but amended or
modified to the extent necessary to meet the
special reimbursement requirements of this plan.
The Division of Medical Assistance will make one
copy of the cost report format available to each
facility (combination facilities receive only one) on
or before July 1 of the reporting year for which
the report is to be filed.

(c) Cost finding and allocation. Costs must be
reported in the cost report in accordance with the
following rules and in the order of priority stated.

( 1 ) Costs must be reported in accordance
with the specific provisions of this plan
as set forth in this Rule.

(2) Costs must be reported in conformance

with the Medicare Provider Reimburse-
ment Manual, HCFA 15.
(3) Costs must be reported in conformance
with Generally Accepted Accounting
Principles,
(d) The specific cost reporting guidelines related
to this plan are set forth in the following Para-
graphs. The state will publish guidelines, consis-
tent with the provisions of this plan, concerning
the proper accounting treatment for items de-
scribed in this Rule as related operating expenses.
The guidelines may be modified prior to the
beginning of each cost reporting period. In no
case, however, shall any modifications be applied
retroactively. A provider should request clarifica-
tion in writing from the state if there is uncertainty
about the proper cost center classification of any
particular expense item.

(1) Nursing Cost Center includes the cost
of nursing staff, medical supplies, and
related operating expenses needed to
provide nursing care to patients, includ-
ing medical records (including forms),
utilization review, the Medical Director
and the Pharmacy Consultant. The
amount of nursing time provided to
each patient must be recorded in order
to allocate nursing cost between skilled
and intermediate nursing care.

(2) Dietary Cost Center includes the cost of
staff, raw food, and supplies needed to
prepare and deliver food to patients.

(3) Laundry and Linen Cost Center in-
cludes the cost of staff, bed linens
(replacement mattresses and related
operating expenses needed to launder
facility-provided items).

(4) Housekeeping Cost Center includes the
cost of staff and supplies needed to
keep the facility clean.

(5) Patient Activities Cost Center includes
the cost of staff, supplies, and related
operating expenses needed to provide
appropriate diversionary activities for
patients.

(6) Social Services includes the cost of
social workers and related operating
expenses needed to provide necessary
social services to patients.

(7) Ancillary Cost Center includes the cost
of all therapy services covered by the
Medicaid program and billable medical
supplies. Providers must bill Medicare
Part B for those ancillary services
covered under the Medicare Part B

7:13 NORTH CAROLINA REGISTER October 1, 1992

1296

PROPOSED RULES

program. Ancillary cost centers in-
clude: Radiology, Laboratory, Physical
Therapy, Occupational Therapy, Speech
Therapy, Oxygen Therapy, Intravenous
Fluids, Billable Medical Supplies,
Parenteral/Enteral Therapy and life
sustaining equipment, such as oxygen
concentrators, respirators, and ventila-
tors and other specifically approved
equipment.

(8) Administrative and General Cost Center
includes all costs needed to administer
the facility including the staff costs for
the administrator, assistants, billing and
secretarial personnel, personnel director
and pastoral expenses. It includes the
costs of copy machines, dues and sub-
scriptions, transportation, income taxes,
legal and accounting fees, start-up, and
a variety of other administrative costs
as set forth in the Chart of Accounts.
Interest expense other than that stem-
ming from mortgages or loans to ac-
quire physical plant items shall be
reported here.

(9) Property Ownership and Use:

(A) This cost center includes all allowable
costs related to the acquisition and/or
use of the physical assets including
building, fixed equipment and mov-
able equipment, that are required to
deliver patient care, except the special
equipment, as specified in .0104(d)(7)
of this Rule that may be charged to
the life-sustaining equipment cost
center. Specifically it includes the
following items:

(i) all equipment expense regardless
of equipment nature,

(ii) lease expense for all physical
assets,

(iii) depreciation of assets utilizing the
straight line method,

(iv) interest expense of asset related
liabilities, (e.g., mortgage ex-
pense),

(v) property taxes.

(B) For the purposes of computing allow-
able lease expense and for balance
sheet presentation for Return on
Equity computations (see Rule .0105),
leases shall not be capitalized.

(C) In establishing the allowable cost for
depreciation and for interest on capital
indebtedness, with respect to an asset

which has undergone a change of
ownership, the valuation of the asset
shall be the lesser of allowable acqui-
sition cost less accumulated deprecia-
tion to the first owner of record on or
after July 18, 1984 or the acquisition
cost to the new owner. Depreciation
recapture will not be performed at
sale. The method for establishing the
allowable related capital indebtedness
shall be as follows:
(i) The allowable asset value shall be
divided by the actual acquisition
cost,
(ii) The product computed in step 1
shall be multiplied times the value
of any related capital indebted-
ness,
(iii) The result shall be the liability
amount upon which interest may
be recorded at the rate set forth in
the debt instrument or such lower
rate as the state may prove is
reasonable. The allowable asset
and liability values established
through the process in this Rule
shall be those used in balance
sheet presentations for return on
equity computation (see Rule
.0105). These procedures are
established to implement the
provisions of PL 98-369 Section
2314.

(10) Operation of Plant and Maintenance
Cost Center includes all costs necessary
to operate or maintain the functionality
and appearance of the plant. These
include: maintenance staff, utilities,
repairs and maintenance to all equip-
ment.

(11) Equipment Expense. Equipment is
defined as an item with a useful life of
more than two years and a value greater
than five hundred dollars ($500.00).
Equipment ownership and use costs
shall be reported in the Property Own-
ership and Use Cost Center. Equip-
ment maintenance and repair costs shall
be reported in the Operation of Plant
and Maintenance Cost Center. Equip-
ment shall not be reported elsewhere.

(12) Training Expense. Training expense
must be identified in the appropriate
benefiting cost center. The costs of
training nurse aides must be identified

1297

7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

separately and may include the cost of
purchasing programs and equipment
that have been approved by the State
for training or testing.

(13) Home Office Costs. Home office costs
are generally charged to the Adminis-
trative and General Cost Centers. In
some cases, however, certain personnel
costs which are direct patient care
oriented may be allocated to "direct"
patient care cost centers if time records
are maintained to document the perfor-
mance of direct patient care services.
No Home office overhead may be so
allocated. The basis of this allocation
among facilities participating in the
North Carolina Medicaid program may
be:

(A) specific time records of work per-
formed at each facility, or

(B) patient days in each facility to which
the costs apply relative to the total
patient days in all the facilities to
which the costs apply.

(14) Management Fees. Management fees
are charged to the Administrative and
General Cost Center. In some cases,
however, a portion of a management
fee may be allocated to a direct patient
care cost center if time records are
maintained to document the perfor-
mance of direct patient care services.
The amount so allocated may be equal
only to the salary and fringe benefits of
persons who are performing direct
patient care services while employed by
the management company. Adequate
records to support these costs must be
made available to staff of the Division
of Medical Assistance. The basis of
this allocation among facilities partici-
pating in the North Carolina Medicaid
program may be:

(A) specific time records of work per-
formed at each facility, or

(B) patient days in each facility to which
the costs apply relative to the total
patient days in all the facilities to
which the costs apply.

(15) Related Organization Costs. It is the
nursing facility's responsibility to dem-
onstrate by convincing evidence to the
satisfaction of the Division of Medical
Assistance that the costs are reasonable.
Reasonable costs of related organiza-

tions are to be identified in accordance
with direct and indirect cost center
categories as follows:

(A) Direct Cost:

(i) Compensation of direct care staff
such as nursing personnel (aides,
orderlies, nurses), food service
workers, housekeeping staff and
other personnel who would nor-
mally be accounted for in a direct
cost center.

(ii) Supplies and services that would
normally be accounted for in a
direct cost center.

(iii) Capital, rental, maintenance,
supplies/repairs and utility costs
(gas, water, fuel, electricity) for
facilities that are not typically a
part of a nursing facility. These
facilities might include such items
as warehouses, vehicles for deliv-
ery and offices which are totally
dedicated or clearly exceed the
number, size, or complexity
required for a normal nursing
facility, its home office, or man-
agement company.

(iv) Compensation of all administra-
tive staff who perform no duties
which are related to the nursing
facility or its home office and
who are neither officers nor own-
ers of the nursing facilities or its
home office.

(B) Indirect Cost:

(i) Capital, rental, maintenance,
supplies/repairs, and utility costs
which are normally or frequently
a part of a nursing facility. This
would include, for example,
kitchen and laundry facilities.

(ii) Home office costs except for
salary and fringe benefits of Per-
sonnel, Accounting and Data
Processing staff which are allocat-
ed by acceptable methods are
direct costs when the work per-
formed is specific to the related
organization that provides a direct
care service or product to the
provider.

(iii) Compensation of all administra-
tive staff who perform any duties
for the nursing facility or its home
office.

7:13 NORTH CAROLINA REGISTER October 1, 1992

1298

PROPOSED RULES

(iv) All compensation of all officers
and owners of the nursing facility
or its home office, or parent
corporation.
The related organization must file a Medicaid
Cost Statement (DMA-4083) identifying their
costs, adjustments to costs, allocation of costs,
equity capital, adjustments to equity capital, and
allocations of equity capital along with the nursing
facilities cost report. A home office, or parent
company, will be recognized as a related organiza-
tion. Auditable records to support these costs
must be made available to staff of the Division of
Medical Assistance and its designated contract
auditors. Undocumented costs will be disallowed.
It is the nursing facility's responsibility to demon-
strate by convincing evidence to the satisfaction of
the Division of Medical Assistance that the criteria
in the Provider Reimbursement Manual. Section
1010. has been met in order to be recognized as an
exception to the related organization principle.
When a related organization is deemed an excep-
tion; reasonable charges by the related organiza-
tion to the nursing facility are recognized as
allowable costs; receiveable/payables from/to the
nursing facility and related organization deemed an
exception are not adjusted from the nursing
facility's balance sheet in computing equity capital,
(e) Auditing and Settlement. All filed cost
reports must be desk audited and interim reim-
bursement settlements made in accordance with the
provision of this plan. This settlement is issued
within 180 days of the date the cost report was
filed or within 180 days of December 31 of the
fiscal year to which the report applies, whichever
is later. The state may elect to perform field
audits on any filed cost reports within three years
of the date of filing and issue a final settlement on
a time schedule that conforms to Federal law and
regulation. If the state decides not to field audit a
facility a final reimbursement notice may be issued
based on the desk audited settlement. The state
may reopen and field audit any cost report after
the final settlement notice to comply with Federal
law and regulation or to enforce laws and regula-
tions prohibiting abuse of the Medicaid Program
and particularly the provisions of this reimburse-
ment plan.

Authority- G.S. 108A-25(b); W8A-54; 108A-55:
S.L. 1985, c. 479, s. 86: 42 C.F.R. 447. Subpart
C.

TITLE 15A - DEPARTMENT OF
ENVIRONMENT, HEALTH, AND

NATURAL RESOURCES

iSotice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Wildlife Re-
sources Commission intends to amend the rule
cited as 15 A NCAC WD .0003

1 he proposed effective date of this action is
January 1. 1993.

1 he public hearing will be conducted at 7:30
p.m.. October 20, 1992, Ground Floor Hearing
Room, Archdalc Building, 512 N. Salisbury Street,
Raleigh. NC 27604-1188.

Reason for Proposed Action: To allow limited
access to certain game lands for horseback riding.

Ksomment Procedures: Interested persons may
present their views either orally or in writing at
the hearing. In addition, the record of hearing
will be open for receipt of written comments from
October 1, 1992 to October 31, 1992. Such
written comments must be delivered or mailed to
the N.C. Wildlife Resources Commission, 512 N.
Salisbury Street, Raleigh, NC 27604-1188.

CHAFTER 10 - WILDLIFE RESOURCES
AND WATER SAFETY

SUBCHAPTER 10D - GAME LAND
REGULATIONS

.0003 HUNTING ON GAME LANDS

(a) Safety Requirements. No person while
hunting on any designated game land shall be
under the influence of alcohol or any narcotic
drug, or fail to comply with special restrictions
regarding the use of the Blue Ridge Parkway
where it adjoins game lands listed in this Rule.

(b) Traffic Requirements. No person shall park
a vehicle on game lands in such a manner as to
block traffic, gates or otherwise prevent vehicles
from using any roadway.

(c) Tree Stands. It is unlawful to erect or to
occupy, for the purpose of hunting, any tree stand
or platform attached by nails, screws, bolts or wire
to a tree on any game land designated herein.
This prohibition shall not apply to lag-screw steps
or portable stands that are removed after use with
no metal left remaining in or attached to the tree.

(d) Time and Manner of Taking. Except where

1299

7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

closed to hunting or limited to specific dates by
these regulations, hunting on game lands is permit-
ted during the open season for the game or
furbearing species being hunted. On managed
waterfowl impoundments, hunters shall not enter
the posted impoundment areas earlier than 4:00
a.m. on the permitted hunting dates, and hunting
is prohibited after 1:00 p.m. on such hunting
dates; decoys may not be set out prior to 4:00
a.m. and must be removed by 3:00 p.m. each day.
No person shall operate any vessel or vehicle
powered by an internal combustion engine on a
managed waterfowl impoundment.

No person shall attempt to obscure the sex or age
of any bird or animal taken by severing the head
or any other part thereof, or possess any bird or
animal which has been so mutilated.

No person shall place, or cause to be placed on
any game land, salt, grain, fruit, or other foods
without prior written authorization of the commis-
sion or its agent. No person shall take or attempt
to take any game birds or game animals attracted
to such foods.

No live wild animals or wild birds shall be
removed from any game land.

(e) Hunting Dates:

(1) Doves may be taken on the following
game lands and dove hunting is limited
to Mondays, Wednesdays, Saturdays
and to Thanksgiving, Christmas and
New Year's Days within the
federally-announced season:

Buncombe County— Browntown Farms Game
Land

Guilford County--Guilford County Farm Game
Land

Lenoir County--Caswell Farm Game Land

Wayne County—Cherry Farm Game Land

(2) Any game may be taken during the
open seasons on the following game
lands and hunting is limited to Mon-
days, Wednesdays, Saturdays and
Thanksgiving, Christmas and New
Year's Days. In addition, deer may be
taken with bow and arrow on the open-
ing day of the bow and arrow season
for deer. Raccoon and opossum hunt-
ing may continue until 7:00 a.m. on
Tuesdays, until 7:00 a.m. on Thurs-
days, and until midnight on Saturdays.
Additional restrictions apply as indicat-
ed in parentheses following specific
designations:

Ashe County— Carson Woods Game Land
Bertie County— Bertie County Game Lands

Bladen County— Bladen Lakes State Forest
Game Lands (Handguns may not be
carried and, except for muzzle-loaders,
rifles larger than .22 caliber rimfire
may not be used or possessed. On the
Breece Tract and the Singletary Tract
deer and bear may be taken only by
still hunting. Deer of either sex may be
taken on the first Wednesday after
Thanksgiving and on the second Satur-
day after Thanksgiving.)

Caswell County— Caswell Game Land

Catawba and Iredell Counties— Catawba Game
Land (No deer may be taken from the
tract known as Island Point and deer
may be taken with bow and arrow only
from the tract known as Molly's Back-
bone.)

Lenoir County— H.M. Bizzell, Sr., Game Land

Onslow County— White Oak River Impound-
ment Game Land (In addition to the
dates above indicated, waterfowl may
be taken on the opening and closing
days of the applicable waterfowl sea-
sons.)

Pender County— Holly Shelter Game Land (In
addition to the dates above indicated,
waterfowl may be taken on the opening
and closing days of the applicable
waterfowl seasons. Deer of either sex
may be taken on Mondays, Wednes-
days, and Saturdays from the first
Wednesday after Thanksgiving through
the third Saturday after Thanksgiving.)

Richmond, Scotland and Moore
Counties— Sandhills Game Land (The
regular gun season for deer consists of
the open hunting dates from the second
Monday before Thanksgiving to the
third Saturday after Thanksgiving ex-
cept on the field trial grounds where the
gun season is from the second Monday
before Thanksgiving to the Saturday
following Thanksgiving. Deer may be
taken with bow and arrow on all open
hunting dates during the bow and arrow
season, as well as during the regular
gun season. Deer may be taken with
muzzle-loading firearms on Monday,
Wednesday and Saturday of the second
week before Thanksgiving week, and
during the regular gun season. Except
for the deer seasons above indicated
and the managed either-sex permit
hunts, the field trial grounds are closed

7:13 NORTH CAROLINA REGISTER October 1, 1992

1300

PROPOSED RULES

to all hunting during the period October
22 to March 31. In addition to the
regular hunting days, waterfowl may be
taken on the opening and closing days
of the applicable waterfowl seasons.)
Wild turkey hunting is by permit only.

Robeson County--Bullard and Branch Hunting
Preserve Game Land

Stokes County— Sauratown Plantation Game
Land

Yadkin County— Huntsville Community Farms
Game Land

(3) Any game may be taken on the follow-
ing game lands during the open season,
except that:

(A) Bears may not be taken on lands
designated and posted as bear sanctu-
aries;

(B) Wild boar may not be taken with the
use of dogs on such bear sanctuaries,
and wild boar may be hunted only
during the bow and arrow seasons,
the muzzle-loading deer season and
the regular gun season on male deer
on bear sanctuaries located in and
west of the counties of Madison,
Buncombe, Henderson and Polk;

(C) On game lands open to deer hunting
located in or west of the counties of
Rockingham. Guilford, Randolph.
Montgomery and Anson, the follow-
ing rules apply to the use of dogs
during the regular season for hunting
deer with guns:

(i) Except for the counties of Chero-
kee, Clay, Jackson, Macon, Mad-
ison, Polk, and Swain, game birds
may be hunted with dogs.

(ii) In the counties of Cherokee, Clay,
Jackson, Macon. Madison, Polk,
and Swain, small game in season
may be hunted with dogs on all
game lands except on bear sanctu-
aries.

(D) On Croatan. Goose Creek, New Hope
and Shearon Harris Game Lands
waterfowl may be taken only on
Mondays, Wednesdays, Saturdays; on
Thanksgiving, Christmas and New
Year's Days; and on the opening and
closing days of the applicable water-
fowl seasons; except that outside the
posted waterfowl impoundments on
Goose Creek Game Land hunting any
waterfowl in season is permitted any

week day during the last 10 days of
the regular duck season as established
by the U.S. Fish and Wildlife Ser-
vice; On the Pamlico Point, Campbell
Creek, and Spring Creek impound-
ments a special permit is required for
hunting on those opening and closing
days of the waterfowl season as well
as on those Saturdays that fall after
November 1 of the season and on
Thanksgiving and New Year's day;

(E) On the posted waterfowl impound-
ments of Gull Rock Game Land hunt-
ing of any species of wildlife is limit-
ed to Mondays. Wednesdays, Satur-
days; Thanksgiving. Christmas, and
New Year's Days; and the opening
and closing days of the applicable
waterfowl seasons;

(F) On bear sanctuaries in and west of
Madison, Buncombe, Henderson and
Polk Counties dogs may not be
trained or allowed to run unleashed
between March 1 and October 1 1 ;

(G) On New Lake, Pungo River, and Gull
Rock Game Lands deer of either sex
may be taken from the first Wednes-
day after Thanksgiving through the
third Saturday after Thanksgiving;

(H) On Butner-Falls of Neuse and Person
Game Lands waterfowl may be taken
only on Tuesdays. Thursdays and
Saturdays. Christmas and New Year's
Days, and on the opening and closing
days of the applicable waterfowl
seasons;

(I) On Angola Bay, Butner-Falls of
Neuse, Croatan, Goose Creek, and
Hofmann Forest Game Lands deer of
either sex may be taken from the first
Wednesday after Thanksgiving
through the following Saturday;

(J) Horseback riding is allowed on the
Caswell and Thurmond Chatham
game lands only during June, July.
and August and on Sundays during
the remainder of the year except
during open turkey and deer seasons.
Horseback riding is allowed only on
roads opened to vehicular traffic.
Participants must obtain a game lands
license prior to engaging in such
activity;

(K) On the posted waterfowl impound-
ments on the New Hope and

1301

7:13 NORTH CAROLINA REGISTER October 1, 1992

wwMarjdWtfJWMiii mtt

PROPOSED RULES

Butner-Falls of Neuse game lands a
special permit is required for all
waterfowl hunting;

(L) Additional restrictions or modifica-
tions apply as indicated in parentheses
following specific designations:

Alexander and Caldwell Counties— Brushy

Mountains Game Lands

Anson County— Anson Game Land

Anson, Montgomery, Richmond and Stanly
Counties— Pee Dee River Game Lands

Ashe County— Elk Ridge Game Lands

Ashe County— Cherokee Game Lands

Ashe and Watauga Counties— Elk Knob
Game Land

Avery, Buncombe, Burke, Caldwell,
Haywood, Henderson, Jackson, Madi-
son, McDowell, Mitchell,
Transylvania, Watauga and Yancey
Counties—Pisgah Game Lands
(Harmon Den and Sherwood Bear
Sanctuaries in Haywood County are
closed to hunting raccoon, opossum
and wildcat. Training raccoon and
opossum dogs is prohibited from
March 1 to October 1 1 in that part of
Madison County north of the French
Broad River, south of US 25-70 and
west of SR 1319.)

Bertie and Washington Counties— Bachelor
Bay Game Lands

Beaufort and Pamlico Counties— Goose
Creek Game Land

Brunswick County— Green Swamp Game
Land

Burke and Cleveland Counties— South
Mountains Game Lands

Caldwell, Watauga and Wilkes
Counties— Yadkin Game Land

Carteret, Craven and Jones
Counties— Croatan Game Lands

Chatham County— Chatham Game Land

Chatham, Durham, Orange, and Wake
Counties— New Hope Game Lands
(On areas posted as "archery zones"
hunting is limited to bow and arrow.
Horseback riding , including all equine
species, is prohibited allowed only
during March, June, July, and August
and on Sundays during the remainder
of the year .)

Chatham and Wake Counties— Shearon
Harris Game Land

Cherokee, Clay, Graham, Jackson, Macon,
Swain and Transylvania

Counties— Nantahala Game Lands.
Raccoon and opossum may be hunted
only from sunset Friday until sunrise
on Saturday and from sunset until
12:00 midnight on Saturday on Fires
Creek Bear Sanctuary in Clay County
and in that part of Cherokee County
north of US 64 and NC 294, east of
Persimmon Creek and Hiwassee
Lake, south of Hiwassee Lake and
west of Nottely River; in the same
part of Cherokee County dog training
is prohibited from March 1 to Octo-
ber 11. It is unlawful to train dogs or
allow dogs to run unleased on any
game land in Graham County between
March 1 and October 1 1 .
Chowan County— Chowan Game Land
Cleveland County— Gardner-Webb Game
Land

Craven County— Neuse River Game Land
Currituck County— North River Game Land
Currituck County— Northwest River Marsh
Game Land

Dare County— Dare Game Land (No hunting
on posted parts of bombing range.)
Davidson, Davie, Montgomery, Rowan and
Stanly Counties— Alcoa Game Land
Davidson County— Linwood Game Land
Davidson, Montgomery and Randolph
Counties— Uwharrie Game Land
Duplin and Pender Counties— Angola Bay
Game Land

Durham, Granville and Wake
Counties— Butner-Falls of Neuse
Game Land (On that part marked as
the Penny Bend Rabbit Research Area
no hunting is permitted. Horseback
riding , including all equine species, is
prohibited allowed only during
March, June, July, and August and on
Sundays during the remainder of the
year .)
Franklin County— Franklin Game Lands
Gates County— Chowan Swamp Game Land
Henderson, Polk and Rutherford
Counties— Green River Game Lands
Hyde County— Gull Rock Game Land
Hyde County— Pungo River Game Land
Hyde and Tyrrell Counties— New Lake
Game Land

Jones and Onslow Counties— Hofmann
Forest Game Land
Lee County— Lee Game Land
McDowell County— Hickory Nut Mountain

7:13 NORTH CAROLINA REGISTER October 1, 1992

1302

PROPOSED RULES

Game Land

McDowell and Rutherford
Counties— Dysartsville Game Lands
Moore County--Moore Game Land
New Hanover County— Sutton Lake Game
Land

Person County— Person Game Land
Transylvania County— Toxaway Game Land
Tyrrell County— Lantern Acres Game Land
Vance County— Vance Game Land. (The
use of dogs, centerfire rifles and
handguns for hunting deer is prohibit-
ed on the Nutbush Peninsula tract of
Vance Game Lands.)
Wilkes County— Thurmond Chatham Game
Land

(4) Deer of either sex may be taken on the
hunt dates indicated by holders of per-
mits to participate in managed hunts
scheduled and conducted in accordance
with this Subparagraph on the game
lands or portions of game lands includ-
ed in the following schedule:

Friday and Saturday of the first week
after Thanksgiving Week:

Lwharrie and Alcoa southeast of NC

49
Thursday and Friday of the week before
Thanksgiving Week:

Sandhills east of US 1

Sandhills west of US 1
Application forms for permits to partici-
pate in managed deer hunts on game
lands, together with pertinent informa-
tion and instructions, may be obtained
from hunting and fishing license agents
and from the Wildlife Resources Com-
mission. Completed applications must
be received by the Commission not
later than the first day of October next
preceding the dates of hunt. Permits
are issued by random computer selec-
tion, are mailed to the permittees 30
days prior to the hunt, and are non-
transferable. A hunter making a kill
must tag the deer and report the kill to
a wildlife cooperator agent.

(5) The following game lands and Federal
Wildlife Refuge are closed to all hunt-
ing except to those individuals who
have obtained a valid and current per-
mit from the Wildlife Resources Com-
mission: Bertie. Halifax and Martin
Counties— Roanoke River Wetlands;
Bertie County— Roanoke River National

Wildlife Refuge.

Dare County— Dare Game Lands
(Those parts of bombing range posted
against hunting)

Davie— Hunting Creek Swamp Water-
fowl Refuge

Gaston, Lincoln and Mecklenburg
Counties— Cowan's Ford Waterfowl Refuge (except
for youth either-sex deer hunts by

permit only on the first and second Saturdays in
October).

Statutory Authority G.S. 113-134; 113-264;
113-291.2; 113-291.5: 113-305.

>?. :'f. i'< -J< •>. -: : : ^ >■ >; ><>:>; & >< % ^ % %

iVotice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Wildlife Re-
sources Commission intends to amend rule cited as
15ANCAC 10F .0336.

1 he proposed effective date of this action is
January 1. 1993.

1 he public hearing will be conducted at 10:00
a.m. on October 16, 1992 at Room 332, Archdale
Building, 512 N. Salisbury Street, Raleigh, NC
27604-1188.

MXeason for Proposed Action: Necessary to
decrease incidences of speeding boats in high risk
areas.

i^onunent Procedures: Interested persons may-
present their views either orally or in writing at
the hearing. In addition, the record of hearing
will be open for receipt of written comments from
October 1, 1992 to October 31, 1992. Such
written comments must be delivered or mailed to
the N.C. Wildlife Resources Commission, 512 N.
Salisbury Street, Raleigh, NC 27604-1188.

CHAPTER 10 - WILDLIFE RESOURCES
AND WATER SAFETY

SUBCHAPTER 10F - MOTORBOATS AND
WATER SAFETY

SECTION .0300 - LOCAL WATER SAFETY
REGULATIONS

1303

7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

.0336 NORTHAMPTON COUNTY

(a) Regulated Area. This Rule applies only to
that portion of Lake Gaston which lies within the
boundaries of Northampton County.

(b) Speed Limit Near Ramps. — No person shall
operate a vessel at greater than no wake speed
within 50 yards of any public boat launching ramp

while

-the — waters — »f- — Gaston — Lake

Northampton County.

{ej £b) Speed Limit in Mooring Areas. No
person shall operate a vessel at greater than
no-wake speed while within a marked mooring
area established with the approval of the Executive
Director, or his representative, on the waters of
Gaston Lake in Northampton County.

^4) — Speed Limit Near Bridge. — No person shall
operate a vessel at greater than no wake speed
within 50 yards on either s ide of the Pea Hill
Creek Bridge.

(c) Speed Limit Near Shore Facilities. No
person shall operate a vessel at greater than no-
wake speed within 50 yards of any marked boat
launching area, dock, pier, bridge, marina, boat
storage structure, or boat service area on the
waters of the regulated areas described in Para-
graph (a) of this Rule.

fe) (dj Restricted Swimming Areas. No person
operating or responsible for the operation of a
vessel shall permit it to enter any marked public
swimming area established with the approval of the
Executive Director, or his representative, on the
waters of Gaston Lake in Northampton County.

ff) (e) Placement and Maintenance of Markers.
The Board of Commissioners of Northampton
County is designated a suitable agency for place-
ment and maintenance of the markers implement-
ing this Rule, subject to the approval of the United
States Coast Guard and United States Army Corps
of Engineers. With regard to marking Gaston
Lake, all of the supplementary standards listed in
Rule .0301(g) of this Section shall apply.

Statutory Authority G.S. 75 A -3; 75A-15.

TITLE 21 - OCCUPATIONAL
LICENSING BOARD

iSotice is hereby given in accordance with G.S.
150B-21.2 that the Board of Medical Examiners of
the State of North Carolina intends to adopt rule
cited as 21 NCAC 32B .0215 and amend rule(s)
cited as 21 NCAC 32A .0001; 32B .0101, .0209-
.0214. .0305. .0314. .0315; 32C .0003, .0006.

1 he proposed effective date of this action is
January 1, 1993.

1 he public hearing will be conducted at 9:00
a.m. on November 2, 1992 at the NC Board of
Medical Examiners, 1203 Front Street, Raleigh,
NC 27609.

MXeason for Proposed Action:
Rule Reason

32B .0215 Adopt new rule to explain combina-
tions of old and new exams acceptable for licen-
sure.

32A .0001 Amend to change office address and
include PO mailing address.

32B .0101 Amend rules to include a new national

exam, USLME, as a basis for licensure in NC and

to allow the Assistant Executive Secretary to

conduct personal licensure interviews in 32B

.0214.

32B .0209

32B .0210

32B .0211

32B .0214

32B .0305

32B .0314

32B .0315

32B . 0212 Amend rule to indicate that exams held
in June and December are licensing exams.

32B .0213 Amend rule to do additional back-
ground checks before licensing physicians when
they finish postgraduate training.

32C . 0003 Amend to allow the Assistant Executive
Secretary to sign forms.
32C .0006

Ksomment Procedures: Persons interested may
present written or oral statements relevant to the
actions proposed at a hearing to be held as indi-
cated above. Written statements not presented at
the hearing should be directed before October 16,
1992, to the following address: Administrative
Procedures, NC Board of Medical Examiners,
P.O. Box 26808, Raleigh, NC 27611-6808.

CHAPTER 32 - BOARD OF MEDICAL

7:13 NORTH CAROLINA REGISTER October 1, 1992

1304

PROPOSED RULES

EXAMINERS

EXAMINATION

SUBCHAPTER 32A - ORGANIZATION

.0001 LOCATION

The location of the office of the Board of Medi-
cal Examiners is 1313 Navaho Drive . 1203 Front
Street. Raleigh. North Carolina 27609. The
phone number is (910) 876 3885 (919) 828-1212 .
The mailing address is Post Office Box 26808.
Raleigh. North Carolina 27611-6808.

Statutory Authority G.S. 90-2.

SUBCHAPTER 32B - LICENSE TO
PRACTICE MEDICINE

SECTION .0100 - GENERAL

.0101 DEFECTIONS

The following definitions apply to Rules within
this Subchapter:

(1) ACGME - Accreditation Council for
Graduate Medical Education.

(2) AOA - American Osteopathic Associa-
tion.

(3) Board - Board of Medical Examiners of
the State of North Carolina.

(4) ECFMG - Educational Commission for
Foreign Medical Graduates.

(5) Fifth Pathway - an avenue for licensure
as defined in the Directory of Accredit-
ed Residencies 1977-1978, American
Medical Association, pp. 30-32.

(6) FLEX - Federation Licensing Examina-
tion, (not administered after December
1993)

(7)

(8)

(9)

(10)

LCME - Liaison Commission on Medi-
cal Education.

SPEX - Special Purpose Examination.
AMA Physician's Recognition Award -
American Medical Association recogni-
tion of achievement by physicians who
have voluntarily completed programs of
continuing medical education.
American Specialty Boards - specialty
boards approved by the American
Board of Medical Specialties.
USMLE = United States Medical Li-
censing Examination.

.0209 FEE

(a) FLEX fee

(1) The fee for both components of the
FLEX written examination taken to-
gether is two hundred and fifty dollars
($250.00), plus the cost of test materi-
als, due at the time of application.
fb4(2) If the two FLEX components are taken
separately, the fee for each component
is due at the time of application for that
component as follows:
fB (A) for the first component, two
hundred and fifty dollars
(S250.00) plus the cost of test
materials:
f2-)(B) for the second component, one
hundred and fifty dollars
($150.00) plus the cost of test
materials.

(b) USMLE fee : The fee for USMLE is two
hundred and fifty dollars ($250.00). plus the cost
of test materials, due at the time of application.

fe-> — In the event the applicant fails to make a
passing score on both component s taken together
or either component taken separately, the foe will
not be refunded.

Statutory Authority G.S. 90-6.

SECTION .0200 - LICENSE BY WRITTEN

(d) In the event the applicant does not appear for
the regularly scheduled examination or the applica
tion i s withdrawn, no portion of the fee will be
refunded.

Statuton- Authority G.S. 90-15.

.0210 DEADLEVE

All application materials must be in the Board's
office at least 75 90 days prior to the written
examination. The 75 90 day deadline may be
waived on the certification of graduation require-
ment. Rule .0203 of this Section, if the applicant
is either in attendance at a medical school ap-
proved by LCME or AOA located in North Caroli-
na or is a citizen of the State of North Carolina.
However, before the examination, the applicant
must satisfy the certificate of graduation require-
ment as follows:

(1) Not less than 75 90 days before the
date of the examination, the Board must
receive a letter from the dean of the
applicant's medical school stating that
the applicant is expected to complete all
requirements for graduation prior to the

1305

7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

date of the examination.

(2) Prior to the date of the examination, the
Board must receive a letter from the
dean of the medical school stating that
the applicant has completed all require-
ments for, and will receive, the M.D.
degree from the medical school.

(3) After the applicant's graduation, the
Board must receive a letter from the
applicant's medical school certifying the
date on which the applicant received the
M.D. degree. This certification must
bear the signature of the dean or other
official and the seal of the medical
school.

Statutory Authority G.S. 90-9.

,0211 PASSING SCORE

To pass the FLEX written examination, the
applicant is required to attain a score of at least 75
on FLEX Component I and a score of at least 75
on FLEX Component II. Components may be
taken in tandem. Any component that is failed
may be retaken; however, Component II may not
be taken alone unless the applicant has passed
Component I within the last seven years. Both
components must be passed within seven years of
the date of taking the initial examination.
To pass Step 3 of the USMLE written examina-
tion, the applicant is required to attain a score of
at least 75.

Statutory Authority G.S. 90-9; 90-12; 90-15.

f2)(B) Graduates of medical schools other
than those approved by LCME or
AOA must have satisfactorily com-
pleted three years of graduate medical
education and training approved by
ACGME or AOA;

(3) letters from all training program direc-
tors since passing the written examina-
tion;

(4) reports from all states in which the
applicant has ever been licensed to
practice medicine indicating the status
of the applicant's license and whether
or not the license has been revoked,
suspended, surrendered, or placed on
probationary terms (mailed directly
from other state boards to the Board);

(5) AMA Physician Profile (requested of
AMA by the Board); and

(6) Federation inquiry (requested of the
Federation of State Medical Boards by
the Board).

Statutory Authority G.S. 90-9.

.0214 PERSONAL INTERVIEW

To be eligible for the written examination,
applicants who are graduates of medical schools
not approved by the LCME or AOA must appear
before the Executive Secretary or Assistant Execu-
tive Secretary for a personal interview upon
completion of all credentials. This interview must
be conducted at least 75 90 days prior to the date
of the examination.

.0212 TIME AND LOCATION

The Board holds two licensing examinations each
year, one in June and one in December, in Ra-
leigh, North Carolina.

Statutory Authority G.S. 90-5.

.0213 GRADUATE MEDICAL EDUCATION
AND TRAINING FOR LICENSURE

Before licensure, physicians who pass the written
examination must furnish the following:

(1) Board application questionnaire;

(2) proof of graduate medical education and
training taken after graduation from
medical school as follows:

f4-)(A) Graduates of medical schools ap-
proved by LCME or AOA must have
satisfactorily completed one year of
graduate medical education and train-
ing approved by ACGME or AOA.

Statutory Authority G.S. 90-6.

.0215 EXAMINATION COMBINATIONS

(a) The routine examination sequences are as
follows:

National Board Part I

121
13}

(b) The following combinations are acceptable

for licensure if completed prior to the year 2000:

LU National Board Part I or USMLE Step

1 plus

National Board Part II or USMLE Step

2 plus

National Board Part III or USMLE Step

National Board Part II
National Board Part III
FLEX Component l_
FLEX Component 2
USMLE Step 1
USMLE Step 2
USMLE Step 3

7:13 NORTH CAROLINA REGISTER October 1, 1992

1306

PROPOSED RULES

{2} FLEX Component 1 plus USMLE Step

3
(3) National Board Part I or USMLE Step

1 plus

National Board Part II or USMLE Step

2 plus

FLEX Component 2

Statutory Authority G.S. 90-6; 90-9: 90-11.

SECTION .0300 - LICENSE BY
ENDORSEMENT

.0305 EXAMINATION BASIS FOR
ENDORSEMENT

(a) To be eligible for license by endorsement of
credentials, graduates of medical schools approved
by the LCME or AOA must supply certification of
passing scores on one of the following written
examinations:

( 1 ) National Board of Medical Examiners;

(2) FLEX - under Rule .0314 of this Sec-
tion;

(3) Written examination other than FLEX
from the state board which issued the
original license by written examination;
©r

(4) National Board of Osteopathic Examin-
ers, all parts taken after January 1 ,
1990ior

15] USMLE = Step. L, Step 2, Step. 3 of
USMLE or a combination of examina-
tions as set out in Rule .0215 of this
Subchapter.

(b) Graduates of medical schools not approved
by LCME or AOA must supply certification of
passing scores on one of the following written
examinations:

(1) FLEX - under Rule .0314 of this Sec-
tion; er

(2) Written examination other than FLEX
from the state board which issued the
applicant's original license by written
examination together with American
Specialty Board certification^ or

£3} USMLE = Step L Step 2, Step 3 of

USMLE or a combination of examina-

tions as set out in Rule .0215 of this
Subchapter.
(c) A physician who has a valid and unrestricted
license to practice medicine in another state, based
on a written examination testing general medical
knowledge, and who within the past five years has
become, and is at the time of application, certified

or recertified by an American Specialty Board, is
eligible for license by endorsement.

(d) Applicants for license by endorsement of
credentials with FLEX scores that do not meet the
requirements of Rule .0314 of this Section must
meet the requirements of Paragraph (c) in this
Rule.

Statutory Authority G.S. 90-10; 90-13.

.0314 PASSING FfcEX EXAM SCORE

(a) FLEX - Physicians who have taken the
FLEX examination may be eligible to apply for a
license by endorsement of credentials if they meet
the following score requirements:

( 1 ) FLEX taken before January 1 , 1 983 - A
FLEX weighted average of 75 or more
on a single three day examination is
required.

(2) FLEX taken after January 1, 1983 - A
FLEX weighted average of 75 or more
on a single three day examination, with
a score not less than 70 on Day I, a
score not less than 75 on Day II, and a
score not less than 75 on Day III, is
required.

(3) FLEX taken after January 1, 1985:

(A) A score of at least 75 on FLEX Com-
ponent I and a score of at least 75 on
FLEX Component II is required.

(B) Components may be taken in tandem.
Any component that is failed may be
retaken; however. Component II may
not be taken alone unless the applicant
has passed Component I within the
last seven years.

(b) USMLE -_ Physicians who have taken the
USMLE mas 1 be eligible to apply for a license by
endorsement of credentials if they meet the follow-
ing score requirements:

(1) A score of at least 75 is required on
Step 3.

(2) Jhe USMLE Step 3 must be passed
within seven years of the date of taking
Step 1.

(c) Examination Combinations z Physicians who
have taken combinations of examinations as set out
in Rule .0215 of this Subchapter may be eligible to
apply for a license by endorsement of credentials
if they meet the score requirements of this Rule.

Statutory Authorirx G.S. 90-6; 90-10: 90-13.

1307

7:13 NORTH CAROLINA REGISTER October 1, 1992

PROPOSED RULES

.0315 TEN YEAR QUALIFICATION

(a) To be eligible for license by endorsement of
credentials, an applicant who has not met one of
the following qualifications within the past ten
years of the date of the application to the Board,
must take the SPEX, or other examination as
determined by the Board, and attain a score of at
least 75:

(1) National Board of Medical Examiners
certification;

(2) FLEX Exam scores as required under
Rule .0314 of this Section;

(3) SPEX score of at least 75;

(4) certification or re-certification from a
specialty board recognized by the
American Board of Medical Specialties;
ef

(5) completion of formal postgraduate
medical education as required under
Rule .0313 of this Section; or

(6) examination combinations as set out in
Rule .0215 of this Subchapter.

(b) The SPEX requirement may be waived upon
receipt of a current AMA Physician' s Recognition
Award.

(e) (b) This requirement is in addition to all
other requirements for licensure and may be
applied as the Board deems appropriate.

in North Carolina, and representing that
the corporation will be conducted in
compliance with the Professional Cor-
poration Act and these Rules;
(6) a certificate (P.C. Form 2) for the
Executive Secretary or the Assistant
Executive Secretary of the Board to
sign certifying that at least one of the
incorporators and each of the persons
named as original shareholders is li-
censed to practice medicine in North
Carolina,
(b) The Executive Secretary or Assistant Execu-
tive Secretary shall review the articles of incorpo-
ration for compliance with the laws relating to
professional corporations and with these Rules. If
they comply, the Executive Secretary or Assistant
Executive Secretary shall sign P.C. Form 2 and
return the original articles of incorporation and the
copy to the incorporators for filing with the Secre-
tary of State. The executed copy of the articles of
incorporation shall be retained in the office of the
Board. If the articles of incorporation are subse-
quently changed before they are filed with the
Secretary of State, they shall be re-submitted to the
Board and shall not be filed with the Secretary of
State until approved by the Board.

Statutory Authority G.S. 55B-4; 55B-10; 55B-12.

Statutory Authority G.S. 90-11; 90-13.

SUBCHAPTER 32C - PROFESSIONAL
CORPORATIONS

.0003 PREREQUISITES FOR
rNCORPORATION

(a) Before filing the articles of incorporation for
a professional corporation with the Secretary of
State, the incorporators shall file with the Execu-
tive Secretary of the Board:

(1) the original articles of incorporation;

(2) an additional executed copy of the
articles of incorporation;

(3) a copy of the articles of incorporation;

(4) a registration fee of fifty dollars
($50.00) set by Rule .0008 of this
Section;

(5) a certificate (P.C. Form 1) certified by
all incorporators, setting forth the
names and addresses of each person
who will be employed by the corpora-
tion to practice medicine for the corpo-
ration, and stating that all such persons
are duly licensed to practice medicine

.0006 CHARTER AMENDMENTS AND
STOCK TRANSFERS

The following general provisions shall apply to
all professional corporations to practice medicine:

(1) All changes to the articles of incorpora-
tion of the corporation shall be filed
with the Board for approval before
being filed with the Secretary of State.
A copy of the changes filed with the
Secretary of State shall be sent to the
Board within ten days after filing with
the Secretary of State.

(2) The Executive Secretary or Assistant
Executive Secretary shall issue the
certificate (P.C. Form 5) required by
G.S. 55B-6 when stock is transferred in
the corporation. P.C. Form 5 shall be
permanently retained by the corpora-
tion. The stock books of the corpora-
tion shall be kept at the principal office
of the corporation and shall be subject
to inspection by the Executive Secretary
or his designee during business hours.

Statutory Authority G.S. 55B-6; 55B-12.

7:13 NORTH CAROLINA REGISTER October 1, 1992

1308

RRC OBJECTIONS

1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 143B-
30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d).

ADMINISTRATION

Motor Fleet Management Division

/ NCAC 38 .0205 - Accident Reporting

AGRICULTURE

Gasoline and Oil Inspection Board

2 NCAC 42 .0102 - Definitions

Agency Revised Rule
2 NCAC 42 .0801 - Purpose and Applicability

Agency Revised Rule

Structural Pest Control Division

2 NCAC 34 .0406 - Spill Control

Agency Responded
2 NCAC 34 .0603 - Waivers

Agency Responded
2 NCAC 34 .0902 - Financial Responsibility

Agency Responded

ECONOMIC AND COMMUNITY DEVELOPMENT
ABC Commission

4 NCAC 2R .0702 - Disciplinary Action of Employee

Rule Returned to Agency
4 NCAC 2R .1205 - Closing of Store

Agency Repealed Rule
4 NCAC 2S .0503 - Pre-Orders

Rule Returned to Agency

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES

Coastal Management

15 A NCAC 7H .0306 - General Use Standards for Ocean Hazard Areas-
Rule Returned to Agency

Departmental Rules

15A NCAC U .0204 - Loans from Emergency Revolving Loan Accounts

15A NCAC U .0302 - General Provisions

15A NCAC U .0701 - Public Necessity: Health: Safety and Welfare

RRC Objection 09/1 7192

RRC Objection 08/20/92

Obj. Removed 08/20/92

RRC Objection 08/20/92

Obj. Removed 08/20/92

RRC Objection 07/16/92

No Action 08/20/92

RRC Objection 07/16/92

No Action 08/20/92

RRC Objection 07/16/92

No Action 08/20/92

RRC Objection 05/21/92
06/18/92
RRC Objection 05/21/92
Obj. Removed 06/18/92
RRC Objection 05/21/92
06/18/92

RRC Objection 05/21/92
06/18/92

RRC Objection 06/18/92
RRC Objection 06/18/92
RRC Objection 06/18/92

1309

7:13 NORTH CAROLINA REGISTER October 1, 1992

RRC OBJECTIONS

Environmental Health

75,4 NCAC 18A .3101 - Definitions
Agency Revised Rule

Environmental Management

15A NCAC 2D .0538 - Control of Ethylene Oxide Emissions

Agency Revised Rule
15 A NCAC 2D .1104 - Toxic Air Pollutant Guidelines

Agency Revised Rule
15 A NCAC 2G .0601 - The Aquatic Weed Control Act

Agency Revised Rule
15A NCAC 20 .0302 - Self Insurance

Health: Epidemiology

15A NCAC 19H .0402 - Documentary Evidence: Facts to be Established

Agency Revised Rule
15 A NCAC 19H .0601 - Birth Certificates

Agency Revised Rule

Soil and Water Conservation

15 A NCAC 6E .0007 - Cost Share Agreement
Agency Revised Rule

Wildlife Resources and Water Safety

15A NCAC WE .0004 - Use of Areas Regulated
Agency Revised Rule

HUMAN RESOURCES

Aging

10 NCAC 22R .0301 - Definitions
Agency Revised Rule
Agency Revised Rule

Day Care Rules

10 NCAC 46D .0305 - Administration of Program

Agency Revised Rule
10 NCAC 46D .0306 - Records

Agency Revised Rule

Medical Assistance

RRC Objection 06/18/92
Obj. Removed 06/18/92

RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection

08/20/92
08/20/92
08/20/92
08/20/92
08/20/92
08/20/92
06/18/92

RRC Objection 08/20/92

Obj. Removed 08/20/92

RRC Objection 06/18/92

Obj. Removed 06/18/92

RRC Objection 06/18/92
Obj. Removed 06/18/92

RRC Objection 06/18/92
Obj. Removed 08/20/92

RRC Objection 07/16/92
RRC Objection 07/16/92
Obj. Removed 08/20/92

RRC Objection 06/18/92

Obj. Removed 06/18/92

RRC Objection 06/18/92

Obj. Removed 06/18/92

10 NCAC 50A .0305 - Appeal Decision
Agency Revised Rule

Mental Health: General

10 NCAC 14C .1010 - Other Contracts

RRC Objection 08/20/92
Obj. Removed 08/20/92

RRC Objection 08/20/92

7:13 NORTH CAROLINA REGISTER October 1, 1992

1310

RRC OBJECTIONS

Agency Revised Rule
10 NCAC 14C .1115- Funding Group Homes for Mentally Retarded Adults

10 NCAC 14M .0704 - Program Director

Agency Revised Rule

INSURANCE

Departmental Rules

// NCAC 1 .0106 - Organization of the Department
Agency Revised Rule

Multiple Employer Welfare Arrangements

11 NCAC 18 .0019 - Description of Forms
Seniors' Health Insurance Information Program

11 NCAC 17 .0005 - SH11P Inquiries to Insurers and Agents

LABOR

Occupational Safety and Health Act

13 NCAC 7 C .0108 - Building Code

13 NCAC 7 C .0109 - Fire Prevention Code

LICENSING BOARDS AND COMMISSIONS

Dietetics/Nutrition

21 NCAC 17 .0014 - Code of Ethics for Professional Practice/Conduct
Agency Revised Rule
Agency Revised Rule

General Contractors

21 NCAC 12 .0503 - Renewal of License
Agency Revised Rule

REVENUE

Individual Income, Inheritance and Gift Tax Division

Obj. Removed 08/20/92

RRC Objection 08/20/92

RRC Objection 05/21/92

Obj. Removed 06/18/92

RRC Objection 06/18/92
Obj. Removed 06/18/92

RRC Objection 06/18/92

RR C Objection 09/1 7/92
RR C Objection 09/1 7/92

RRC Objection 05/21/92
RRC Objection 05/21/92
Obj. Removed 06/18/92

RRC Objection 08/20/92
Obj. Removed 08/20/92

17 NCAC 3B .0401 - Penalties
17 NCAC 3B .0402 - Interest

Individual Income Tax Division

17 NCAC 6B .0107 - Extensions

17 NCAC 6B .0115 - Additions to Federal Taxable Income

17 NCAC 6B .0116 - Deductions from Federal Taxable Income

17 NCAC 6B .0117 - Transitional Adjustments

17 NCAC 6B .3406 - Refunds

RRC Objection 08/20/92
RRC Objection 08/20/92

RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection

08/20/92
08/20/92
08/20/92
08/20/92
08/20/92

1311

7:13 NORTH CAROLINA REGISTER October 1, 1992

RRC OBJECTIONS

STATE PERSONNEL
Office of State Personnel

25 NCAC IE . 1301 - Purpose RRC Objection 07/16/92

Agency Revised Rule Obj. Removed 08/20/92

25 NCAC IE . 1302 - Policy RRC Objection 07/16/92

Agency Revised Rule Obj. Removed 08/20/92

25 NCAC IE . 1303 - Administration RRC Objection 07/16/92

Agency Revised Rule Obj. Removed 08/20/92

25 NCAC IE . 1304 - Qualifying to Participate in Voluntary Shared Leave Prgm RRC Objection 07/16/92

Agency Revised Rule Obj. Removed 08/20/92

25 NCAC IE . 1305 - Donor Guidelines RRC Objection 07/16/92

Agency Revised Rule Obj. Removed 08/20/92

25 NCAC IE . 1306 - Leave Accounting Procedures RRC Objection 07/16/92

Agency Revised Rule Obj. Removed 08/20/92

25 NCAC 1H .0603 - Special Recruiting Programs RRC Objection 05/21/92

Agency Repealed Rule Obj. Removed 06/18/92

25 NCA C 11 .1702 - Employment of Relatives RRC Objection 07/16/92

Agency Revised Rule Obj. Removed 08/20/92

25 NCAC II . 1903 - Applicant Information and Application RRC Objection 07/16/92

Agency Revised Rule Obj. Removed 08/20/92

25 NCAC II .2401 - System Portion I: Recruitment, Selection, & Advancement RRC Objection 07/16/92

Agency Revised Rule Obj. Removed 08/20/92

25 NCAC 11 .2402 - System Portion II: Classification/Compensation RRC Objection 07/16/92

Agency Revised Rule Obj. Removed 08/20/92

25 NCAC 11 .2403 - System Portion III: Training RRC Objection 07/16/92

Agency Revised Rule Obj. Removed 08/20/92

25 NCAC II .2404 - System Portion IV: Employee Relations RRC Objection 07/16/92

Agency Revised Rule Obj. Removed 08/20/92

25 NCAC 11 .2405 - System Portion V: Equal Emp Oppty/ Affirmative Action RRC Objection 07/16/92

Agency Revised Rule Obj. Removed 08/20/92

25 NCAC 11 .2406 - System Portion VI: Political Activity RRC Objection 07/16/92

Agency Revised Rule Obj. Removed 08/20/92

25 NCAC U . 1005 - Eligibility for Services RRC Objection 05/21/92

Agency Revised Rule Obj. Removed 06/18/92

TRANSPORTATION
Division of Highways

19A NCAC 2B .0164 - Use of Right of Way Consultants
19A NCAC 2B .0165 - Asbestos Contracts with Private Firms

RRC Objection
RRC Objection

09/17/92
08/20/92

7:13 NORTH CAROLINA REGISTER October 1, 1992

1312

RULES INVALIDATED BY JUDICIAL DECISION

1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court,
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which
invalidate a rule in the North Carolina Administrative Code.

1 NCAC 5 A .0010 - ADMINISTRATIVE PROCEDURES

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions
of Rule 1 NCAC 5 A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Carolina
Department of Community Colleges and Tlie North Carolina Department of Administration, Respondent and
Tlie University of Southern California, Intervenor-Respondent (92 DOA 0666).

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - fflV

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A
NCAC 19A .0202(d)( 10) void as applied In ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle),
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina,
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment,
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department
of Environment, Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as
Chief, Communicable Disease Control Section of the North Carolina Department of Environment, Health, and
Natural Resources, Wayne Babbitt Jr. , as Chief of the HIV/STD Control Branch of the North Carolina
Department of Environment. Health, and Natural Resources, Respondents (91 EHR 0818).

1313 7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

1 his Section contains the full text of some of the more significant Administrative Law Judge decisions
along with an index to all recent contested cases decisions which are filed under North Carolina 's
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698.

KEY TO CASE CODES

ABC Alcoholic Beverage Control Commission DST

BDA Board of Dental Examiners EDC

BME Board of Medical Examiners EHR

BMS Board of Mortuary Science

BOG Board of Geologists ESC

BON Board of Nursing HAF

BOO Board of Opticians HRC

CFA Commission for Auctioneers IND

COM Department of Economic and Community INS

Development LBC

CPS Department of Crime Control and Public Safety MLK

CSE Child Support Enforcement NHA

DAG Department of Agriculture OAH

DCC Department of Community Colleges OSP

DCR Department of Cultural Resources PHC

DCS Distribution Child Support

DHR Department of Human Resources POD

DOA Department of Administration SOS

DOJ Department of Justice SPA

DOL Department of Labor

DSA Department of State Auditor WRC

Department of State Treasurer
Department of Public Instruction
Department of Environment, Health, and
Natural Resources
Employment Security Commission
Hearing Aid Dealers and Fitters Board
Human Relations Committee
Independent Agencies
Department of Insurance
Licensing Board for Contractors
Milk Commission

Board of Nursing Home Administrators
Office of Administrative Hearings
Office of State Personnel
Board of Plumbing and Heating
Contractors

Board of Podiatry Examiners
Department of Secretary of State
Board of Examiners of Speech and Language
Pathologists and Audiologists
Wildlife Resources Commission

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Anne R. Gwaltney, Milton H. Askew, Jr.

and Anna L. Askew

EHR and Pamlico County Health Department

89 DHR 0699

Reilly

07/17/92

Eleanor R. Edgerton-Taylor

Cumberland County Department of Social Services

89 OSP 1141

Morrison

08/18/92

Annette Carlton

Cleveland County Department of Social Services

90 OSP 0024

Chess

08/14/92

Janice Parker Haughton

Halifax County Mental Health, Mental Retardation,

Substance Abuse Program

90 OSP 0221

West

08/18/92

7:13 NORTH CAROLINA REGISTER October 1, 1992

1314

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Carolina Water Service, Inc.

EHR, Division of Environmental Management

90 EHR 0415

West

09/11/92

CSX Transportation, Inc.

Department of Environment, Health, & Natural Resources

90 EHR 0628

Reilly

07/17/92

Bruce Keeter

Beaufort County Health Department

90 EHR 0666

Morgan

07/28/92

Christine Hill

Crime Victims Compensation Commission

90 CPS 0876

Morgan

08/24/92

JHY Concord, Inc.

v.
Department of Labor

90 DOL 1421

Morgan

07/28/92

Lick Fork Hills, Inc., Marion Bagwell, President

Department of Environment, Health, & Natural Resources

91 EHR 0023

Morgan

07/28/92

Albert J. Johnson

N.C. Victims Compensation Commission

91 CPS 0038

Morgan

07/28/92

Frank Beal. T/A Wild Wild West

Alcoholic Beverage Control Commission

91 ABC 0164

Morgan

09/10/92

William B. Holden

Department of Environment, Health, & Natural Resources

91 EHR 0176

Morgan

08/18/92

Brenda P. Price

North Carolina Central University

91 OSP0219

Morrison

08/21/92

Century Care of Laurinburg. Inc.

DHR. Division of Facility Services, Licensure Section

91 DHR 0257

West

06/30/92

Richard L. Gainey

Department of Justice

91 OSP 0341

Becton

08/10/92

Wade Charles Brown, Jr.

N.C. Crime Victims Compensation Commission

91 CPS 0345

Chess

07/08/92

Jackie Bruce Edwards

DHR, Western Carolina Center

91 OSP 0354

West

08/20/92

1315

7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Robert C. Howell

Department of Correction

91 OSP 0407

Morgan

08/26/92

Charles E. Roe

Department of Environment, Health, & Natural Resources

91 OSP 0520

Nesnow

07/23/92

Jerry J. Parker

v.
Department of Correction

91 OSP 0546

Morgan

08/26/92

Air-A-Plane Corporation

v.
Department of Environment, Health, & Natural Resources

91 EHR 0636

Nesnow

09/04/92

Lisa M. Reichstein

Office of Student Financial Aid, East Carolina University

91 OSP 0662

Nesnow

06/24/92

Hudson's "The Acres" Rest Home

DHR, Division of Facility Services, Licensure Section

91 DHR 0665

Chess

09/09/92

DHR. Division of Facility Svcs, Child Day Care Section

v.
Mary Goodwin. Jean Dodd, D/B/A Capital City Day Care

Center

91 DHR 0720

Morgan

07/30/92

Kenneth Helms

Department of Human Resources

91 OSP 0729

Chess

07/15/92

Lloyd C. Neely

Department of Correction

91 OSP 0756

Morgan

09/10/92

Alcoholic Beverage Control Commission

Daniels Investments, Inc., t/a Leather & Lace - East

4205 Monroe Road, Charlotte, N.C. 28205

91 ABC 0799

Mann

07/14/92

Zelma Babson

Brunswick County Health Department

91 OSP 0804

Gray

08/14/92

7:13 NORTH CAROLINA REGISTER October 1, 1992

1316

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

ACT-UP Triangle (AIDS Coalition to Unleash Power

Triangle, Steven Harris, and John Doe

Commission for Health Services of the State of N.C., Ron

Levine, as Assistant Secretary of Health and State Health

Director for EHR of the State of N.C., William Cobey, as

Secretary of EHR of the State of N.C., Dr. Rebecca

Meriwether, as Chief, Communicable Disease Control

Section of the N.C. EHR, Wayne Bobbin, Jr., as Chief of

the HIV/STD Control Branch of the N.C. EHR

91 EHR 0818

Becton

07/08/92

Jane C. O'Malley, Melvin L. Cartwright
v.
EHR and District Health Department Pasquotank-
Perquimans-Camden-Chowan

91 EHR 0838

Becton

07/02/92

Thomas E. Vass

James E. Long, Department of Insurance

91 INS 0876

Morrison

08/14/92

William Paul Fearrington

University of North Carolina at Chapel Hill

91 OSP 0905

Reilly

08/28/92

Gerald R. Pruitt

Department of Correction

91 OSP 0933

Gray

09/14/92

Grotgen Nursing Home, Inc., Britthaven, Inc.

Certificate of Need Section, Div of Facility Svcs, DHR

91 DHR 0964
91 DHR 0966

Nesnow

07/06/92

Ramona S. Smith, R.N.

v.
N.C. Teachers'/St Emps' Comp Major Medical Plan

91 DST 0984

Chess

06/18/92

Jarrett Dennis Swearengin

DHR, Division of Social Services, CSE

91 CSE 0986

Becton

09/14/92

Charles H. Yates, Power of Attorney for Ruth Yates

v.
N.C. Teachers'/St Emps' Comp Major Medical Plan

91 INS 1008

Reilly

08/21/92

Walter McGlone

DHR, Division of Social Services, CSE

91 CSE 1030

Morrison

07/13/92

William Oscar Smith

DHR, Division of Social Services, CSE

91 CSE 1042

Gray

07/24/92

William Watson

DHR, Division of Social Services, CSE

91 CSE 1047

Becton

07/08/92

1317

7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Robert D. Daniels Jr.

DHR, Division of Social Services, CSE

91 CSE 1048

Morrison

08/27/92

Marie McNeill-Pridgen

Department of Environment, Health, & Natural Resources

91 EHR 1059

Nesnow

07/17/92

Catawba Memorial Hospital

DHR, Div of Facility Svcs, Certificate of Need Section

and
Frye Regional Medical Ctr, Inc. and Amireit (Frye), Inc.

and

Thorns Rehabilitation Hospital Health Services Corp.

and

Frye Regional Medical Ctr, Inc. and Amireit (Frye), Inc.

v.
DHR, Div of Facility Svcs, Certificate of Need Section

and

Thorns Rehabilitation Hospital Health Services Corp.

and

Catawba Memorial Hospital

91 DHR 1061
91 DHR 1087

Reilly

07/13/92

Edward R. Peele

Sheriffs' Education & Training Stds. Commission

91 DOJ 1092

Morrison

08/18/92

Charles Lawton Roberts

DHR, Division of Social Services, CSE

91 CSE 1097

Becton

09/14/92

William Torres

Dept of Justice, Lacy H. Thornburg, Attorney General

91 DOJ 1098

Morrison

08/07/92

Wade A. Burgess

DHR, Division of Social Services, CSE

91 CSE 1114

Gray

07/01/92

Sammie L. Anderson

DHR, Division of Social Services, CSE

91 CSE 1155

Mann

09/01/92

Harry L. King

Department of Transportation

91 OSP 1162

Morgan

07/13/92

Gilbert Lockhart

DHR, Division of Social Services, CSE

91 CSE 1178

Morrison

07/30/92

Isaac H. Galloway

DHR, Division of Social Services, CSE

91 CSE 1190

Reilly

06/30/92

7:13 NORTH CAROLINA REGISTER October 1, 1992

1318

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Russell A. Barelift

DHR, Division of Social Services. CSE

91 CSE 1207

92 CSE 0275

Reilly

06/30/92

Barnabas D. Frederick

DHR. Division of Social Services. CSE

91 CSE 1216

Nesnow

09/15/92

Herman Edward Main II

DHR, Division of Social Services. CSE

91 CSE 1225

Nesnow

07/07/92

Albert Louis Stoner III

DHR, Division of Social Services. CSE

91 CSE 1244

Gray

07/01/92

James E. Greene

DHR. Division of Social Services, CSE

91 CSE 1245

Nesnow

07/14/92

Joseph W. Harris

DHR. Division of Social Services, CSE

91 CSE 1247

Morgan

07/28/92

Celvis M. Burns

DHR, Division of Social Services. CSE

91 CSE 1256

Mann

09/01/92

Rodney Powell

DHR, Division of Social Services. CSE

91 CSE 1257

Morgan

07/29/92

Miles G. Griffin Jr.

DHR, Division of Social Services. CSE

91 CSE 1270

Gray

08/27/92

Gerald E. Anthony

DHR, Division of Social Services. CSE

91 CSE 1274

Mann

09/01/92

Floyd L. Rountree

DHR. Division of Social Services, CSE

91 CSE 1275

Morgan

07/22/92

Ruth Smith Hensley Shondales

ABC Commission

91 ABC 1280

Chess

08/05/92

Rasoul Behboudi

DHR. Division of Social Services. CSE

91 CSE 1313

Morrison

09/15/92

City- Wide Asphalt Paving, Inc.

Department of Environment. Health, & Natural Resources

91 EHR 1360

Chess

07/01/92

1319

7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Alcoholic Beverage Control Commission

Tre Three, Inc., T/A Crackers,

Airport Rd., Rockingham, NC 28379

91 ABC 1372

Chess

07/07/92

Alcoholic Beverage Control Commission

Rode Enterprises, Inc., T/A Jordan Dam Mini Mart

91 ABC 1388

Gray

07/30/92

Blythe M. Bragg

University of North Carolina at Chapel Hill

91 OSP 1421

Nesnow

09/08/92

David W. Williams

DHR, Division of Social Services, CSE

91 CSE 1423

Morrison

09/10/92

Donald R. Allison

DHR, Caswell Center

91 OSP 1427

Reilly

06/30/92

Alfred Rees

Department of Environment, Health, & Natural Resources

92 EHR 0004

Reilly

09/03/92

Mrs. S.

Washington County Board of Education

92 EDC 0023

Mann

08/28/92

Rudolph Tripp

Department of Correction

92 OSP 0024

Gray

08/27/92

Lavern Fesperman

v.
Mecklenburg County

92 OSP 0030

Chess

07/17/92

Paul J. Nonkes

Halifax County Health Dept. (Jeff Dillard, Sanitarian)

92 EHR 0058

Becton

08/28/92

Carrolton of Williamston, Inc.

DHR, Division of Facility Services, Licensure Section

92 DHR 0071

Becton

08/19/92

Fred Jennings Moody Jr.

Sheriffs' Education & Training Stds. Commission

92 DOJ 0084

Chess

07/17/92

Ronnie Lamont Donaldson

Sheriffs' Education & Training Standards Commission

92 DOJ 0092

Reilly

07/27/92

Vernice V. Battle

Sheriffs' Education & Training Standards Commission

92 DOJ 0093

Becton

08/28/92

7:13 NORTH CAROLINA REGISTER October 1, 1992

1320

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Hudson's "The Acres" Rest Home

DHR, Division of Facility Services, Licensure Section

92 DHR 0100

Chess

09/04/92

Marvin Helton, Jean Helton

DHR, Division of Facility Services

92 DHR 0102

Chess

08/14/92

Leo Scott Wilson

Department of Environment, Health, & Natural Resources

92 EHR0112

Reilly

08/26/92

Peggy N. Barber

The University of North Carolina at Chapel Hill

92 OSP 0120

Reilly

07/13/92

Alcoholic Beverage Control Commission

John Wade Lewis, t/a Tasty Grill

92 ABC 0145

Nesnow

07/15/92

Licensing Board for General Contractors

Wright's Construction. Inc. (Lie. No. 23065)

92 LBC 0172

Gray

07/31/92

Richard L. Banks

Pasquotank-Perquimans-Camden-Chowan District Health

Department (PPCC) & Department of Environment,

Health, & Natural Resources

92 EHR0175

West

08/25/92

Hudson's "The Acres" Rest Home

DHR, Division of Facility Services, Licensure Section

92 DHR 0186

Chess

09/04/92

Ray Bryant

Department of Labor, OSHA

92 DOL 0187

Nesnow

08/07/92

Herbert Hines Jr., H & H

v.
Alcoholic Beverage Control Commission

92 ABC 0189

Becton

07/22/92

William Stevenson

Department of Correction

92 OSP 0201

Chess

09/03/92

Frances B. Billingsley

Bd. of Trustees/Teachers & St Employees Retirement Sys

92 DST 0205

Morgan

08/18/92

Glenn E. Myers

v.
Department of Correction

92 OSP 0217

Reilly

09/14/92

1321

7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Lawrence Neal Murrill T/A Knox, 507 1st St SW,

Hickory, NC 28602

Alcoholic Beverage Control Commission

92 ABC 0220

Chess

08/03/92

Town of Denton

Department of Environment, Health, & Natural Resources

92 EHR 0241

Reilly

07/30/92

Alcoholic Beverage Control Commission

Byrum's of Park Road, Inc., T/A Byrum's Restaurant

92 ABC 0252

Gray

07/30/92

Alcoholic Beverage Control Commission

v.
Leo's Delicatessen #2, Inc., T/A Leo's #2

92 ABC 0255

Gray

07/30/92

North Topsail Water & Sewer, Inc.

Department of Environment, Health, & Natural Resources

92 EHR 0266

Morrison

08/12/92

Henry Thomas Tart

DHR, Division of Social Services, CSE

92 CSE 0283

Nesnow

09/15/92

Henry Lane, D/B/A Emerald Health Care Acute Care Ctr

v.
DHR, Div of Facility Services, Certificate of Need Section

and

Bowman-Richardson Health Care, Inc. D/B/A Wilkes

Senior Village

92 DHR 0308

Gray

08/28/92

Gerald G. Strickland

Crime Control and Public Safety

92 CPS 0320

Chess

09/10/92

Jonathan L. Fann

U.N.C. Physical Plant. Herb Paul, Louis Herndon, Dean

Justice, Bruce Jones

92 OSP 0363

Becton

08/19/92

Douglas A. Bordeaux

Department of Correction

92 OSP 0378

Chess

07/10/92

Clifton R. Johnson

O'Berry Center, Department of Human Resources

92 OSP 0381

West

07/08/92

Southeastern Machine & Tool Company, Inc.

Department of Environment. Health, & Natural Resources

92 EHR 0386

Becton

07/20/92

Louvenia Clark

Edgecombe County Department of Social Services

92 OSP 0402

Reilly

08/21/92

7:13 NORTH CAROLINA REGISTER October 1, 1992

1322

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Raleigh F. LaRoche

Child & Family Services of Wake County

92 OSP 0409

Becton

08/24/92

Paul Reeves, Youth University Child Care

Child Day Care Section, Division of Facility Svcs

92 DHR 0424

West

08/21/92

Mr. & Mrs. James C. Stanton

Charlotte-Mecklenburg School System

92 EDC 0430

Nesnow

08/04/92

James Cooper Lewis

Sheriffs' Education & Training Standards Commission

92 DOJ 0461

Reilly

09/15/92

Jon David Amundson

Davidson County Mental Health

92 OSP 0503

Becton

09/10/92

Northview Mobile Home Park

Department of Environment, Health, & Natural Resources

92 EHR 0507

Reilly

07/13/92

Yolanda Lynn Bethea

DHR, Division of Social Services, CSE

92 DCS 0513

Becton

08/14/92

Alice Hunt Davis

Department of Human Resources

92 OSP 0526

West

07/16/92

Jimmy F. Bailey Sr.

Department of State Treasurer, Retirement Systems Div

92 DST 0536

Morgan

08/18/92

Bramar, Inc., t/a Spike's

Alcoholic Beverage Control Commission

92 ABC 0554

Mann

08/13/92

Ralph J. Ogburn

Private Protective Services Board

92 DOJ 0571

Nesnow

08/07/92

Gilbert Todd Sr.

Public Water Supply Section

92 EHR 0586

Morrison

08/06/92

Candance Y. Johnson

Division of Motor Vehicles

92 DOT 0589

Becton

08/24/92

John W. Surles

N.C. Crime Victims Compensation Commission

92 CPS 0595

Reilly

07/ 1 3/92

1323

7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Pamela Jean Gass

DHR, Division of Social Services, CSE

92 DCS 0623

Morrison

08/14/92

J.W. Reed

v.
Department of Correction

92 OSP 0638

Morrison

08/11/92

Carson Davis

Department of Correction

92 OSP 0650

Reilly

08/10/92

Luther Hall Clontz

Western Carolina Center (NC of Human Resources)

92 OSP 0652

Becton

09/10/92

Private Protective Services Board

Mark Andrew Perry

92 DOJ 0662

Becton

09/10/92

Stauffer Information Systems

Department of Community Colleges and the N.C.

Department of Administration

and

The University of Southern California

92 DOA 0666

West

07/08/92

Nancy J. Tice

Administrative Off of the Courts, Guardian Ad Litem Svcs

92 OSP 0674

Morrison

08/11/92

L. Stan Bailey

Chancellor Moran and UNC-Greensboro

92 OSP 0679

West

07/10/92

Arnold McCloud T/A Club Castle

Alcoholic Beverage Control Commission

92 ABC 0681

Morrison

07/25/92

Joyce Faircloth, T/A Showcase Lounge

v.
Alcoholic Beverage Control Commission

92 ABC 0713

Morrison

07/25/92

James B. Price

Department of Transportation

92 OSP 0725

Mann

09/02/92

Edmonia Lang

Carteret County Board of Education

92 OSP 0736

Mann

08/28/92

Larry Bruce High

Alarms Systems Licensing Board

92 DOJ 0755
92 DOJ 0785

Nesnow

08/25/92

7:13 NORTH CAROLINA REGISTER October 1, 1992

1324

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Daniel N. Jones

N.C. Victims Compensation Commission

92 CPS 0879

Chess

08/28/92

7325

7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

STATE OF NORTH CAROLINA

COUNTY OF JOHNSTON

IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
90 EHR 0415

CAROLINA WATER SERVICE,
Petitioner

INC.

NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT, HEALTH AND
NATURAL RESOURCES, DrVlSION OF
ENVIRONMENTAL MANAGEMENT
Respondent

RECOMMENDED DECISION

The above-captioned matter was heard by Thomas R. West, Administrative Law Judge, on February
3, 1992, in Raleigh, North Carolina.

For Petitioner:
For Respondent:

APPEARANCES

Edward S. Finley, Jr., James L. Hunt, Hunton and Williams
Elizabeth Rouse Mosley, Associate Attorney General

ISSUES

1 . Whether the Respondent (DEM) lacked authority or acted arbitrarily or capriciously in setting
a total phosphorus limit at 0.1 mg/1, including the use of the "Mass Balance Model," for effluent discharges
of 250,000 gallons per day (gpd) and 500,000 gpd.

2. Whether the Respondent lacked authority or acted arbitrarily or capriciously in requiring
Petitioner to take daily downstream samples at the spillway of Austin Pond.

STIPULATED FACTS

The parties stipulated in the Final Prehearing Order that the following facts are true:

1 . On August 14, 1989, the Petitioner (CWS) filed an application with the Respondent to renew
an existing National Pollution Discharge Elimination System (NPDES) permit to operate a surface discharge
wastewater treatment plant in the White Oak Subdivision of Johnston County.

2. Petitioner's previous NPDES permit, dated September 2, 1988, allowed Petitioner (1) to
operate an existing 50,000 gpd wastewater facility, (2) to expand this plant to 140,000 gpd after receiving
appropriate Authorization to Construct, and (3) after receiving appropriate Authorization to Construct, to build
and operate a 500,000 gpd facility at a separate outfall on White Oak Creek. The permit did not contain any
limitations on total phosphorus discharge.

3. Petitioner's system was first permitted to then owner, White Oak Plantation, Inc. ("White Oak
Plantation"), in February, 1985. The initial permit set an effluent limit of 50, 000 gpd. In September, 1986,

7:13 NORTH CAROLINA REGISTER October 7, 1992

1326

CONTESTED CASE DECISIONS

White Oak Plantation applied for and received a modified permit allowing an immediate effluent flow of up
to 50,000 gpd, with stepwise increases to 140,000 gpd and 500,000 gpd. In January, 1987, White Oak
Plantation received a third permit, which allowed it (1) to continue to operate the existing 50,000 gpd facility,
(2) after receiving Authorization to Construct from DEM, to expand the existing plant to a 140,000 gpd
facility, and (3) after receiving Authorization to Construct from DEM, to build a separate facility with design
capacity of 500,000 gpd. The 1985, 1986, and 1987 permits did not contain any limitations on total
phosphorus discharge.

4. At latitude 353850, longitude 783121, the summer 7Q 10 of White Oak Creek is 0.10 cfs, the
winter 7Q10 of White Oak Creek is 0.82 cfs, and the average stream flow of White Oak Creek is 10.00 cfs.

5. On March 19, 1990, the Respondent issued a permit which allowed Petitioner to continue to
operate the existing 50,000 gpd plant at White Oak. This permit provided for two possible discharge points:
(1) at the existing site on an unnamed tributary to White Oak Creek, and (2) to a new outfall on White Oak
Creek proper. The permit eliminated the stepwise increases to 140,000 gpd and 500,000 gpd contained in
the 1986, 1987, and 1988 permits.

6. On April 23, 1990, the Petitioner filed its petition for a contested case.

7. After settlement negotiations. Respondent and Petitioner agreed that the permit submitted
March 19, 1990, could be issued with the following additional conditions:

a. Stepwise increases, after issuance of authorization to Construct, would allow effluent
discharges of 250,000 gpd and 500,000 gpd.

b. Permit issuance is subject to public review via standard public noticing procedures.

c. Permittee will provide an on-site operator with appropriate educational and certification
requirements for daily operation and maintenance checks on the proposed, highly advanced
waste treatment plant (i.e. for the 250,000 and 500,000 gpd discharges). Effluent total
phosphorus (TP) concentrations should be measured on a daily basis, as should the other
parameters typically included for a Class III facility (with one site exception).

d. Permittee agrees to relocate the WWTP outfall pipe (for the 250,000 gpd and 500,000 gpd
facilities) to White Oak Creek at a distance of approximately 1 .5 miles above Austin Pond
at a latitude of 353850 and a longitude of 783121 (original permitted site).

e. Permittee agrees to perform instream monitoring to provide information deemed necessary
by the Division (with one site exception) to evaluate instream impacts related to the facility's
discharge. A reopener clause will be placed in the permit to allow for permit revision or
revocation upon demonstration of significant instream water quality impacts (i.e. frequent or
severe water quality standard violations).

f. Permittee must provide a sludge management plan (including details regarding quantity,
handling and disposal) for approval by DEM prior to NPDES permit issuance for the
expanded flows.

g. Permittee shall provide dual path treatment and stand-by power or other equivalent reliability
measures as approved by the Division.

FINDINGS OF FACT

Based upon the evidence admitted at the hearing, the undersigned Administrative Law Judge finds the
following facts:

1327 7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

1 . CWS operates approximately 35 sewage treatment plants in North Carolina, including the
plant at White Oak.

2. White Oak is a residential subdivision in Johnston County with about 123 single family
homes.

3. When CWS purchased the water and sewer system at White Oak in January, 1988, CWS
obtained a copy of the existing NPDES permit. CWS paid $50,000 for the White Oak system. CWS
promised the developer that it would provide sewer service to the entire 1,000 acres in the White Oak tract.
In order to serve the entire tract, CWS will require a permit with a greater than 50,000 gpd effluent limit.

4. CWS was required to obtain a Certificate of Public Convenience and Necessity from the
North Carolina Utilities Commission before it could purchase and operate the facility. CWS has received a
Certificate of Public Convenience and Necessity from the Utilities Commission to operate the White Oak
facility.

5. Since purchasing the system, CWS has improved the sewage treatment facilities. At the time
of purchase, the tertiary filter at the plant was off-line, only one of the two blowers was operational, and the
surge tank was not operating properly. After CWS' purchase, however, a DEM inspection in March, 1989,
indicated that the system was in total compliance with all effluent limitations and monitoring requirements.
The regional water quality supervisor for the Raleigh district reported on April 18, 1989, that the facility was
well maintained and operated.

6. When CWS first obtained the permit for the White Oak facility in September, 1988, no issues
were raised that suggested DEM should change the existing effluent limitations.

7. Part III of Petitioner's September 2, 1988, NPDES permit stated that "Upon expiration of this
permit [January 31, 1990], the permit shall be renewed with a phosphorous limit of 2.0 milligrams per liter
for the 0.500 MGD phase of the treatment plant. This limitation must be met by May 1, 1993, or upon the
start-up of the 0.500 MGD phase of the treatment plant after May 1, 1993." As a result, in 1988, DEM
issued a permit to Petitioner stating that upon expiration of that permit, the permit would be renewed with
a phosphorus limit significantly higher than sought by Petitioner in this contested case.

8. DEM did not inform CWS, in writing, until July 26, 1990, that the reason it had denied
CWS' application was because of the potential for excessive eutrophication of the downstream Austin Pond.
DEM indicated, at that time, that a reduction of total phosphorus to 0.5 mg/1 was the maximum level that
DEM considered reasonably achievable.

9. DEM has indicated that its concern in this case was, and is, the potential impact on Austin
Pond as opposed to White Oak Creek.

10. CWS did not apply for an "expanded" effluent discharge in the contested permit. Since 1986,
the permits for White Oak have allowed discharges of up to 500,000 gpd, the same amount requested by CWS
in this case. On the other hand, DEM seeks to reduce the effluent flow previously allowed CWS at White
Oak.

1 1 . After CWS filed a contested case, DEM indicated that it did not believe CWS could meet a
proposed phosphorus standard of 0.1 mg/1 phosphorus.

12. CWS submitted engineering information and other data which helped persuade DEM that
CWS could meet a proposed phosphorus standard of 0.1 mg/1 phosphorus.

13. In this proceeding, CWS has stipulated that it would agree to reduce the level of phosphorus
discharge to 0.5 mg/1 at 250.000 gpd and 0.2 mg/1 at 500,000 gpd. A CWS affiliate has consistently met

7:13 NORTH CAROLINA REGISTER October 1, 1992 1328

CONTESTED CASE DECISIONS

a 0.18 mg/1 phosphorus standard at a wastewater treatment plant in Virginia.

14. The proposed discharge point on White Oak Creek proper is roughly 1.5 miles above the
headwaters of Austin Pond.

15. Just below the proposed discharge point, but above Austin Pond, the White Oak Creek
traverses a swampy area.

16. The water quality standards in Austin Pond at issue in this case are: chlorophyll a, dissolved
oxygen, and dissolved gases.

17. CWS presented the testimony of Dr. Clifford W. Randall, a chaired professor of civil
engineering and Chairman of the Environmental Engineering and Sciences Program at Virginia Polytechnic
Institute and State University. Dr. Randall is director of the Occoquan Watershed Monitoring program and
was appointed to the executive committee of the Chesapeake Bay Water Quality Project, both of which are
eutrophication control programs. Dr. Randall has extensive experience in designing wastewater treatment
plants. Dr. Randall was named "Conservationist of the Year" by the Chesapeake Bay Foundation for his
efforts to prevent nutrient pollution in Chesapeake Bay. Dr. Randall has published a large number of works
on phosphorus removal and on the science of eutrophication. Dr. Randall is an expert on the subjects of
eutrophication, water pollution, water treatment and nutrient removal.

18. In preparing for testimony. Dr. Randall reviewed the existing and proposed NPDES permits
for White Oak Creek, the wasteload allocation procedures of DEM, and inspected the treatment plant at White
Oak and Austin Pond.

19. Eutrophication is the excessive fertilization of a body of water which results in rapid growth
of plants such as algae and rooted aquatic vegetation.

20. In order for accelerated eutrophication to occur in impounded waters, including Austin Pond,
nutrients such as phosphorus must be present. Sunlight and favorable temperatures are also necessary for
accelerated eutrophication. Other factors include the depth of the impoundment, the shape and size of the
impoundment, and the retention time of water in the impoundment. Wastewater discharges contain
phosphorus.

21 . Wastewater plants are capable of removing large amounts of phosphorus before discharge into
receiving waters. Phosphorus removal processes can consist of biological removal, chemical additions, and
filters. Phosphorus levels can be reduced to 0.35 mg/1 without any chemical addition. Technology exists
to reduce phosphorus levels below 0.1 mg/1.

22. Only about two to three percent in expense would be added to the cost of a plant to comply
with phosphorus limits of about 0.35 mg/1. To reach phosphorus limits of about 0.10 mg/1, however, the
cost of the plant would be increased by about seventy percent, and the operating costs of the plant would be
increased by about one hundred percent.

23. CWS" rates and charges are established by the North Carolina Utilities Commission. The
increased costs of differing levels of phosphorus removal would likely be passed directly to CWS' North
Carolina customers.

24. The " Vollenweider Model" is a predictive device used to determine the likelihood of excessive
eutrophication. The model uses as variables the amount of phosphorus loading into an impoundment and the
retention time of water in the subject impoundment. Although the use of the Vollenweider Model appears to
be erroneous because it utilizes annual phosphorus loading and does not account for low stream levels during
the warmest weeks of the year, the Vollenweider model has been found to accurately predict eutrophication
in impoundments in North America and in Europe, including lakes in North Carolina, Georgia, Tennessee
and Florida. The Vollenweider Model is an accepted method in the scientific community in predicting

1329 7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

eutrophication in impoundments such as Austin Pond and has been endorsed by the EPA. The Vollenweider
criteria are empirically related to eutrophication in lakes in the southeastern United States.

25. No eutrophic conditions at Austin Pond are predicted by the Vollenweider Model if the
phosphorus discharge does not exceed 0.5 mg/1 at 250,000 gpd or 0.2 mg/1 at 500,000 gpd.

26. Several variables not addressed by the Vollenweider Model suggest that under the facts in
this case eutrophication in Austin Pond is even less likely than predicted by the Vollenweider Model. Normal
in-stream processes tend to remove phosphorus from a stream. The upstream swamp can absorb much of the
discharged phosphorus. Eutrophication is less likely in a small pond because of the shallowness of the pond
and the shorter water retention time.

27. Phosphorus levels in Austin Pond will not generate eutrophic conditions if the phosphorus
discharge from Petitioner's plant does not exceed 0.5 mg/1 at 250,000 gpd or 0.2 mg/1 at 500,000 gpd.

28. There is currently no excessive eutrophication in Austin Pond.

29. The phosphorus concentrations in White Oak Creek will actually be reduced from those
currently permitted by DEM at discharge levels of 250.000 gpd and 500,000 gpd under the limitations
proposed by the Petitioner.

30. DEM did not utilize the Vollenweider Model.

31. Although DEM's use of the 7Q10 of White Oak Creek in determining that phosphorus limits
above 0.1 mg/1 would permit eutrophication of Austin Pond appears to be logical, DEM's analyses of the
potential for eutrophication in Austin Pond were flawed in several respects.

32. DEM's use of the 7Q10 for White Oak Creek erroneously assumes that attainment of 0.1
mg/1 total phosphorus in White Oak Creek is necessary to prevent eutrophication. The waters of White Oak
Creek flow into Austin Pond, thereby mixing the creek water with pond water which contain substantially
lower levels of phosphorus per liter.

33. The retention time of water in Austin Pond is greater than seven days. It is, therefore, not
logical to use the 7Q10 figure for White Oak Creek to measure phosphorus concentrations in an entirely
separate body of water, Austin Pond.

34. DEM's reliance on a 0.1 mg/1 phosphorus target for Austin Pond is inappropriate. A level
of 0. 1 mg/ 1 phosphorus has been correlated with eutrophic conditions in only one of at least four DEM studies
of large lakes. In that one instance, the 0.1 mg/1 measurement was taken while algae were in bloom. A
correct correlation between chlorophyll a and phosphorus concentrations cannot be made in an algae bloom.
Moreover, the DEM study that obtained a 0.1 mg/1 measurement was made downstream of a discharge of
millions of gallons of wastewater in the Eno River not subject to any phosphorus restrictions.

35. DEM's assumption that a localized zone in a large lake is analogous to Austin Pond is without
basis in fact.

36. The mass balance model is designed to measure phosphorus concentrations in a stream and
not in an impoundment. DEM did not use the mass balance model in an appropriate manner.

37. The mass balance model as used by DEM does not determine the likelihood of eutrophication
under 7Q10 conditions in Austin Pond in a reliable manner.

38. DEM did not collect actual in-pond data at Austin Pond.

39. Petitioner will decrease the loading of phosphorus into Austin Pond at the levels it seeks

7:13 NORTH CAROLINA REGISTER October 1, 1992 1330

CONTESTED CASE DECISIONS

compared to the levels now permitted by DEM.

40. DEM's decision not to grant the permit at issue is inconsistent with other similar permitting
decisions.

41. DEM has never imposed a 0.1 mg/1 standard on an expanding plant, even for plants
discharging into lake headwaters tested by DEM for eutrophication. This includes the 4. 14 MGD Henderson
plant at Nutbush Creek, effluent from which is dominating the stream and is affecting Kerr Lake. DEM's
testimony indicated that it was willing to permit an expansion for this plant with phosphorus concentrations
more than five times the alleged 0.1 mg/1 standard.

42. There is no evidence that CWS has legal access to the land surrounding Austin Pond,
including land adjacent to the pond's spillway. Indeed, the only evidence is that the pond and the land
surrounding it are privately owned.

43. There is no evidence that CWS has been permitted or invited to enter the land surrounding
Austin Pond.

CONCLUSIONS OF LAW

1 . CWS' certificate of public convenience and necessity issued by the North Carolina Utilities
Commission gives CWS a monopoly to provide private sewer service in White Oak. The certificate requires
CWS to provide reasonable service to every customer in the 1.000 acre White Oak tract.

2. North Carolina dischargers to surface waters are required to obtain permits from DEM before
discharging wastewater.

3. DEM acted erroneously, arbitrarily, and capriciously in denying the permit with phosphorus
limits of 0.5 mg/1 at 250.000 gpd and 0.2 mg/1 at 500,000 gpd.

4. Given the absence of evidence of ownership, CWS does not have legal authority to enter the
private property of the owner of Austin Pond, including the land adjacent to the spillway at Austin Pond, to
perform water monitoring.

5. DEM acted without legal authority in attempting to require CWS to take daily downstream
samples at the spillway and acted arbitrarily and capriciously in attempting to impose such a monitoring
requirement.

RECOMMENDED DECISION

It is recommended that the Respondent issue the Petitioner a N'PDES permit to operate a surface
discharge wastewater treatment plant at White Oak Subdivision in Johnston County with the following
conditions:

a. Stepwise increases, after issuance of Authorization to Construct, to allow effluent discharges
of 250,000 gpd and 500,000 gpd. Total Phosphorus limitations will be 0.5 mg/1 for the
250.000 gpd plant and 0.2 mg/1 for the 500.000 gpd discharge. No other effluent limitations
are at issue in this case. Monitoring requirements at the Spillway at Austin Pond shall be
eliminated.

b. Permit issuance is further subject to the stipulations of the parties.

1331 7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute
150B-36(b).

NOTICE

The agency making the final decision in this contested case is required to give each party an
opportunity to file exceptions to this recommended decision and to present written arguments to those in the
agency who will make the final decision. G.S. 150B-36(a).

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.

The agency that will make the final decision in this contested case is the North Carolina Department
of Environment, Health and Natural Resources.

This the 1 1th day of September, 1992.

Thomas R. West
Administrative Law Judge

7:13 NORTH CAROLINA REGISTER October 1, 1992 1332

CONTESTED CASE DECISIONS

STATE OF NORTH CAROLINA

COUNTY OF WASHINGTON

IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
92 EDC 0023

MRS. S. 1

Petitioner

vs.

WASHINGTON COUNTY BOARD
OF EDUCATION,

Respondent

FINAL DECISION

This contested case was heard in Greenville, Pitt County, North Carolina, on the 28th day of May,
1992 and continued by agreement of counsel to the 8th day of June, 1992. The hearing was concluded in
Plymouth. Washington County, North Carolina, on the 9th and 10th days of June, 1992. The record closed
with the filing of Proposed Findings and Conclusions of Law on July 10, 1992.

APPEARANCES

For Petitioner:

Jack Hansel

Pamlico Sound Legal Service

Greenville, North Carolina

Roger Manus

Carolina Legal Assistance

Raleish. North Carolina

For Respondent:

Maynard Harrell
Attorney At Law
Plymouth. North Carolina

WITNESSES

For Petitioner:

Raymond E. Webster

(expert witness in fields of child psychology, school

psychology, neuropsychology, and special education)
Mrs. S.

For Respondent:

Peggy Davenport
Susan Styons
Alta Allen
Ileana Perez
Darrell Beetle
Randall Spier
Katherine Pharr

Pursuant to Petitioner's request made through counsel by pleading filed with the Office of Administrative
Hearings (OAH) on July 17. 1992. the initials of this child and his parents will be utilized to protect their right
to confidentiality.

1333

7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

Jim Lloyd
Sandra Rhodes
Shirley Kuhn

EXHIBITS

For Petitioner: Petitioner's Exhibit #1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14. 15, 16,

17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28

For Respondent: None

ISSUES

1 . Whether the Washington County Board of Education has failed to provide G.E.S.* with a free
and appropriate education through an appropriate individualized education program pursuant to State and
federal law.

2. Whether the Washington County Board of Education has denied G.E.S. his right to a free
appropriate education by failing to provide him the necessary related services he requires to receive an
appropriate education.

3. Whether or not G.E.S.'s individualized education plan is otherwise appropriate to meet his
needs .

4. Whether or not G.E.S.'s individualized education plan is being implemented to meet his
needs .

STIPULATIONS

The Stipulations are contained in the Prehearing Order and as further stipulated and defined in the
record and are set out in this decision.

FINDE\GS OF FACT

1 . The Office of Administrative Hearings has jurisdiction over the parties and the subject matter
of this contested case pursuant to Chapters 115C and 150B of the North Carolina General Statutes.

2. Mrs. S. (Petitioner) is a citizen and resident of Roper, Washington County, North Carolina
and is the mother and responsible parent (along with her husband Mr. S.*) for their minor child.

3. G.E.S.'s date of birth is March 3, 1982, and he has completed grade level three at Pines
Elementary School, Plymouth, Washington County, North Carolina.

4. G.E.S. has from birth suffered from a diffuse encephalopathy with bifrontal dysfunction
associated with medical complications at delivery, apparently caused by subarachnoid hemorrhage.

5. Respondent is the local education agency responsible for providing a free, appropriate public
education to G.E.S.

6. In a report prepared by Becky H. Taylor, Center Director for the Sylvan Learning Center,
Greenville, North Carolina, in May of 1990, she concludes that G.E.S. tires easily and becomes quite
frustrated in situations that are not tailored to meet his needs. This conclusion is adopted as a finding of fact
and is quoted as follows:

7:13 NORTH CAROLINA REGISTER October 1, 1992 1334

CONTESTED CASE DECISIONS

"He tires easily and becomes quite frustrated in situations that are not tailored to meet
his needs." (See Petitioner's Exhibit #15)

7. On or about August 14, 1990, G.E.S. was seen by Dr. Theodore R. Sunder, M. D.,
Associate Professor and Chief of Pediatric Neurology at East Carolina University. Dr. Sunder diagnosed
G.E.S.'s medical condition as diffuse encephalopathy with bifrontal dysfunction. In his report of August 14,
1990, he concludes that G.E.S. will require behavioral therapy. Dr. Sunder's conclusion is adopted as a
finding of fact. (Petitioner's Exhibit #3)

"In addition, he will require behavioral therapy, likely by an organic psychologist with
some experience in working with head injured individuals."

8. Prior to G.E.S.'s transfer to the jurisdiction of the Respondent, Washington County Board
of Education from the Martin County Board of Education in mid term of the second grade, G.E.S. was
provided education pursuant to his IEP. He was designated EMH.

9. On or about January 4. 1991, G.E.S. was recommended by Respondent for placement in a
special education program and to continue the designation in the EMH category. This designation was not
objected to by Petitioner. (See Petitioner's #11)

10. During the second grade year G.E.S. began to manifest symptoms of headaches, upset
stomach and behavior problems. Petitioner expressed her concerns to Mrs. Peggy Davenport, Exceptional
Children's Director of the Respondent in her correspondence to her dated February 4, 1991. Specifically,
her observations, which are taken as findings as to her assessment of G.E.S.'s symptoms are quoted as
follows:

"Apparently, his needs are not being met because there are obvious signs of frustration
and low self esteem. G.E.S. is experiencing headaches, upset stomach and behavior
problems not only at home but at school as well." (See Petitioner's Exhibit #9)

11. In a separate letter to Mrs. Peggy Davenport under date of February 14, 1991, Petitioner
objected to Respondent's refusal to approve an independent evaluation of G.E.S. and requested mediation.
(See Petitioner's Exhibit #9)

12. Pursuant to a recommendation contained in Respondent's committee report dated February
12, 1991 (see Petitioner's Exhibit #9), a psychological evaluation was performed by Shirley P. Kuhn, MS,
Psychological Associates, 400 W. 16th Street, Washington, North Carolina. Ms. Kuhn had in her possession
Dr. Sunder's diagnosis and recommendations. Inasmuch as Ms. Kuhn refers to Dr. Sunder's diagnosis and
recommendations, this reference is adopted as a finding that Ms. Kuhn was aware of Dr. Sunder's diagnosis
and report. Ms. Kuhn, in her report to Respondent, writes:

"His (Dr. Sunder) recommendations spanned the gambit of special services, including
speech/language, physical, and occupational therapy as well as behavior therapy and
management, all integrated into a highly structured academic program in a self-
contained learning disabilities classroom setting." (See Petitioners Exhibit #13)

13. Notwithstanding the presence of the diagnosis found by Dr. Sunder and his recommendations,
Ms. Kuhn rejected the recommendation of a further neuropsychological evaluation of G.E.S. or. for that
matter, any plan to implement any other changes in G.E.S.'s IEP except for the administration of a WISC-R,
which is a standard test to measure intelligence. Ms. Kuhn's recommendations are stated as follows:

1335 7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

least not enough to outweigh what might be perceived as additional messages that some-
thing is wrong with him), but it will be very important in the next few months to clarify
his rate of cognitive development." (See Petitioner's Exhibit #13) (emphasis added)

14. On or about June 4, 1991, at an IEP meeting, a recommendation was made that G.E.S.
"receive a neuropsychological". (See Petitioner's Exhibit #7) As a result, Dr. Raymond F. Webster, PhD.,
NCSP, a recognized authority in the field of neuropsychology, performed a psychological evaluation. This
psychological evaluation accepted Dr. Sunder's diagnosis of G.E.S. and some of the other of Dr. Sunder's
observations. Dr. Webster administered a battery of diagnostic tests. Based upon the review of these
diagnostic tests and interview with G.E.S. and the Petitioner, Dr. Webster made certain conclusions and
outlined very specific recommendations based upon a multimodal teaching strategy. Dr. Webster recognized
that G.E.S. was exhibiting certain stress related behaviors, not unlike what had been observed by Dr. Sunder
in his report and Ms. Taylor in her report. Dr. Webster's findings as to the existence of these behaviors is
adopted as a finding of fact and is quoted as follows:

"G.E.S. was referred for a comprehensive neuropsychological evaluation by Ms. Peggy
Davenport, Director of Exceptional Children's Program with the Washington County
Schools. The referral was prompted by Mrs. S. because of increasing difficulties
experienced by G.E.S. with school achievement and behavior at home following school
attendance...

Emotionally, G.E.S. appears to be a highly distressed and intense youngster who
approaches school with a good deal of fear and the expectation of failure. Insecurity,
uncertainty, and feelings of being different from his peers in a negative way were
suggested. High needs for emotional support and reassurance are evident. Impulse
control and restraint are well below age-level expectancies and likely to be the result of
both frontal lobe damage which is compounded by emotionally-based problems
associated with organicity.

G.E.S. appears to take some of his emotional distress and convert it into corresponding
physical symptoms. Frustration, anger, and loss of control behaviorally may be
expected along with frequent physical or somatic complaints. Data obtained from both
mother and G.E.S. during independent interviews confirms the findings from the
projective testing data.

...Additionally individual counseling for him and parent effectiveness training and
counseling for parents, especially mother, are appropriate and recommended...

The counselors should be professional psychologists with specific expertise in working
with youngsters who have these kinds of characteristics associated with organicity." (See
Petitioner's Exhibit #12)

15. Based upon the report of Dr. Webster, G.E.S. 's IEP for the school year 1991-92 was agreed
upon. G.E.S. was recommended for a change in placement to SLD. The decision to change G.E.S. 's
placement from EMH to SLD was based upon Dr. Webster's neuropsychological evaluation, the
recommendation of Petitioner and the School Based Committee. (See Petitioner's Exhibit #5)

16. Also as contained in Petitioner's Exhibit #5 is an adoption of the parent effectiveness training
recommendation of Dr. Webster and is quoted as follows:

"Assist mother as recommended by the neuropsychological 6/20/91."

17. The IEP evaluation notes low frustration tolerance and that G.E.S. works slowly, and he's
easily frustrated. (See Petitioner's Exhibit #5)

7:13 NORTH CAROLINA REGISTER October 1, 1992 1336

CONTESTED CASE DECISIONS

18. Many of the recommendations of Dr. Webster were incorporated in G.E.S.'s IEP. In some
instances, copies of his recommendations were attached as exhibits to the IEP (See Petitioner's Exhibit #28).

19. On or about September 17. 1991, G.E.S. was again seen by Dr. Theodore R. Sunder,
Associate Professor, Chief, Pediatric Neurology at East Carolina University. G.E.S. was presented to Dr.
Sunder in part to diagnose G.E.S.'s continuing symptoms of headaches. Dr. Sunder concludes and the
undersigned finds as a fact that the headaches are a result of stress. Dr. Sunder's report is quoted as follows:

"I feel that these (headaches) are distinctly stress related. I don't find anything to
suggest significant vascular component at this juncture. Again I would agree that
supportive psychotherapy as outlined and recommended by the neuropsychologist would
be important and certainly beneficial in optimizing this young man's performance in the
school setting. This should be carried out at a frequency determined by the therapist

but likely would require several times weekly at the beginning " (See Petitioner's

Exhibit #3)

20. On or about September 17, 1991. Sue H. Hilliard, licensed physical therapist, made certain
recommendations concerning G.E.S.'s need for physical therapy and they are adopted as findings of fact:

"His problems of memory deficiency, frustration, and inattention are best served by
small settings with decreased audio-verbal stimulus with allowances made for fatigue
with fine motor deficiencies. Physical therapy should be integrated into his program to
address his motor coordination and control deficits. The special physical education
program initiated by you last year would not only meet the criteria established by his
recent evaluation, but also addresses those problems specifically found with my
evaluation." (See Petitioner's Exhibit #4)

21. On or about September 30, 1991. Theresa Dulski, OTR/L School of Medicine. Department
of Pediatrics. East Carolina University, made recommendations rejecting the need for direct occupational
therapy (OT) and this conclusion is made a finding of fact as follows:

"We both agreed that based on my clinical observation findings in which G.E.S.
demonstrated good postural control, shoulder stability, muscle strength and good
dynamic balance skills, direct occupational therapy services are not recommended." (See
Petitioner's Exhibit #21)

22. On or about November 22, 1991, in correspondence addressed to Mr. Robert J. Alligood,
Superintendent, Washington County Schools, attorneys representing G.E.S. and Mrs. S. made the following
demand which is adopted as a finding of fact for purposes of formally stating Mrs. S.'s position concerning
psychological counseling:

"It is clear that psychotherapy which G.E.S. needs will have to be provided by Dr.
Webster or someone with similar expertise. No such psychologist can be found in
Washington County. Therefore I and Roger Manus of Carolina Legal Assistance who
is also representing Mrs. S. in this matter, felt that rather than scheduling another
meeting we should formally advise you that it is absolutely necessary that psychotherapy
as outlined and recommended by Dr. Webster be incorporated into G.E.S.'s individual
education program at no cost to him or his parents. Also note that Dr. Sunder stated
in his report that G.E.S. needed the therapy as recommended by Dr. Webster.

If this psychotherapy can be included in the program, then I believe any remaining
issues can be resolved by agreement. However, if you do not agree to provide this
psychotherapy then we wish to request the due process hearing through the Office of
Administrative Hearings in regard to all issues relating to this individual education
program. Since Mrs. S. is clear in her belief that G.E.S. must have this therapy and

1337 7:13 NORTH CAROLINA REGISTER October 1, 1992

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CONTESTED CASE DECISIONS

since the psychologist and physician who have examined G.E.S. are also in agreement
on this point, we see no need for further evaluation of G.E.S. or for any other further
meeting or to discuss this point." (See Petitioner's Exhibit #1)

23. Notwithstanding the information disclosed to the Respondent in Petitioner's Exhibit #1
concerning Tideland Mental Health Center, a recommendation was made by Respondent on January 6, 1992,
that in order to "assist Mrs. S. an appointment will be made for G.E.S. at Tideland."

24. On or about January 13, 1992, Mrs. S., as Petitioner, filed a petition for a contested case
hearing in the Office of Administrative Hearings complaining of the following:

"The agency has failed to provide my son with an adequate individualized program in
that, among other things they have refused to provide the occupational therapy, physical
therapy and psychological counseling necessary to his receiving a free appropriate
education in the least restrictive environment."

25. In the Prehearing Order received for filing on May 28, 1992, the following stipulation was
entered into between counsel:

"Dr. Webster's recommendations of June 20, 1991 are appropriate and should be
implemented except that Respondent does not agree that the counselor(s) should be
professional psychologists with specific expertise in working with youngsters who have
the kinds of characteristics associated with organicity that G.E.S. has."

26. By stipulation entered on record on June 8, 1992, Respondent stipulated that all 15 requests
for admissions previously filed and dated March 13, 1992, were true and accurate except for the need for
psychological counseling by an expert in organicity and the expertise for coordinating the services to G.E.S.
and with the further limitation that the stipulation does not admit that these services are required by law. The
requests for admissions are as follows:

"1. G.E.S. needs to spend at least half of his school day in a classroom with
a small number of students and a teacher certified in the field of learning disabilities.

2. In any classroom situation where the teacher is not certified in the field
of learning disabilities, but where writing or mathematics are involved, G.E.S. needs for
the teacher to have active and direct consultation with learning disabilities specialist.

3. G.E.S. needs to have implemented the educational recommendations
attached as exhibit 1 (exhibit 1 contains the recommendations copied directly from Dr.
Webster's report.).

4. G.E.S. needs a brief respite period for every 20 minutes that he is
involved in an academic situation.

5. G.E.S. needs adaptive physical education.

6. G.E.S. needs individual counseling by a professional psychologist with
specific expertise concerning problems associated with organicity.

7. G.E.S. needs behavior therapy by a psychologist with specific expertise
concerning problems associated with organicity.

8. G.E.S. needs for there to be coordination between the home and school
concerning his behavior program.

7:13 NORTH CAROLINA REGISTER October 1, 1992 1338

CONTESTED CASE DECISIONS

9. As a related educational service, G.E.S. needs parent effectiveness

training and counseling for his parents.

10. For meaningful improvement in gross motor coordination and control,
G.E.S. needs physical therapy at least once a week for one hour.

11. G.E.S. needs occupational therapy at least once a week for one hour for
meaningful improvement of fine motor coordination and control.

12. G.E.S. needs speech and language therapy.

13. In order to not experience significant educational regression during the
summer and thus have reasonable equal educational opportunity, G.E.S. needs
educational services during the summer.

14. An appropriate education for G.E.S. requires that there be formal
reviews by school system representatives with his parents every six weeks concerning the
efficacy of his educational program.

15. G.E.S. needs a formal education reevaluation every six months."

27. G.E.S. spends a substantial portion of his day in a LD classroom and the remainder of his
day in the regular classroom pursuant to the IEP. Ms. Styons is G.E.S.'s LD teacher and he is benefitting
academically from the instruction being received by her. Ms. Styons employs a multimodal teaching strategy
and has studied at East Carolina University under Dr. Webster.

28. A stipulation is contained in the record where counsel for Respondent and Petitioner agreed
that Dr. Webster is not aware of the implementation of any of his recommendations contained in his report.

29. Ms. Styons. as the learning disabilities teacher in the areas as outlined in the IEP and other
related areas, consults on a regular basis with Ms. Alta Allen, the regular classroom teacher.

30. Based upon the testimony of Respondent's witnesses, a substantial number of Dr. Webster's
recommendations are being implemented in the classroom as well as being provided for in the IEP. Except
as specifically found to the contrary herein. G.E.S.'s IEP, as well as the implementation of the IEP, reflect
to a substantial degree the implementation of Dr. Webster's recommendations. Where the IEP or the
implementation of the IEP does not reflect these recommendations, it is expressly found that they are either
not necessarily appropriate or that G.E.S. will not benefit academically from their implementation or are
otherwise unnecessary.

31. Based upon the testimony of Respondent's witnesses, and as provided for in his IEP or
otherwise as implemented, sufficient respite periods are provided G.E.S. during the class day.

32. G.E.S. is provided, or it is implemented in his IEP, adaptive physical education. Randall
Spier implements the IEP in the area of physical education and instructs G.E.S. in adaptive PE for periods
of 30 minutes per week.

33. G.E.S. at home has been sick, throwing up with headaches, experiencing diarrhea, refusing
to go to school, exhibiting aggressive behavior in the afternoons, chewing his bottom lip, biting his nails and
exhibiting other related symptoms of stress. Mrs. S. has observed G.E.S. driving a lawn mower and golf cart
as a means of reducing stress.

34. G.E.S.'s weekend behavior is much better than his school week behavior as it relates to
stress.

1339 7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

35. Causality and nexus have been established between the exemplifying of stress related behavior
at home and the fact that the behavior is generated as a result of school related environments.

36. A person with a closed head injury such as G.E.S.'s requires a somewhat different approach
to services than does a person with mental retardation and the expectations overall would be higher for G.E.S.
The remediation of G.E.S.'s skills deficits requires an approach which teaches him to compensate for or work
around his neurological problems instead of trying to strengthen his abilities in all areas.

37. G.E.S.'s stress arises because of the natural negative feedback he gets at school as a result
of his inability to do certain tasks because of his head injury. This negative feedback occurs even if the
teacher is very warm and supportive.

38. Based upon the medical reports of Dr. Webster and Dr. Sunder and the expert testimony of
Dr. Webster, G.E.S. is in need of behavior therapy and counseling concerning reduction of fatigue and stress
by a psychologist with specific expertise concerning problems associated with organicity.

39. Based upon the medical report of Dr. Webster and by his expert testimony, G.E.S. is in need
of coordination between the home and school concerning his behavior program. Mrs. Styons (or someone
with her equivalent training and experience) in consultation with a psychologist with specific expertise
concerning problems associated with organicity is sufficient for this coordination.

40. Based upon the medical records of Dr. Webster and the expert testimony of Dr. Webster,
Mrs. S. and Mr. S. are in need of parent effectiveness training and counseling as this training and counseling
pertain to the area of G.E.S.'s stress and fatigue symptoms experienced at home. This training and counseling
to be effective must be received from a psychologist with specific training and expertise concerning the
problems associated with organicity.

41. Individual counseling for G.E.S. by a professional psychologist with specific expertise
concerning problems associated with organicity should be oriented toward teaching G.E.S. stress management
techniques and cognitive control mechanisms. Such cognitive control mechanisms would help G.E.S. to
recognize when he is getting fatigued and losing behavior control and give him alternative ways of dealing
with his feelings and the overall negative impact of his self concept. The specialist in this area would set up
a specific behavior management system for G.E.S.

42. G.E.S.'s IEP and the implementation of the IEP call for improvement in gross motor
coordination and control. G.E.S. is receiving appropriate physical therapy in a small physical education class
and as a consequence he is receiving this service (or minor adjustments may be made to ensure he receives
it).

43. G.E.S.'s IEP and its implementation calls for speech and language therapy. Katherine Pharr
provides speech clinician services and instructs G.E.S. in a small group setting with two other students and
implements his IEP language therapy. She also consults with Ms. Styons on a regular basis.

44. The paucity of evidence concerning the resolution of the issue concerning educational services
during the summer was insufficient to carry the burden of proof as to its benefit or necessity notwithstanding
the stipulation to the contrary.

45. G.E.S. and his parents are presently receiving formal reviews and meetings with the School
Based Committee and are otherwise receiving adequate notice of G.E.S.'s progress. There is no reason to
depart from what G.E.S. is now receiving by way of review notwithstanding the stipulation to the contrary.

46. During the 1991-92 school year, G.E.S. had the benefit of competent and caring special
education and regular classroom teachers. These teachers implemented most of the instructional curricular
and behavioral recommendations which are a major part of the educational recommendations found at pp. 6-10
of the June 1991 evaluation report of Dr. Webster. (Petitioner's proposed findings of fact, pg. 5). Mrs. S.

7:13 NORTH CAROLINA REGISTER October 1, 1992 1340

CONTESTED CASE DECISIONS

agreed to this IEP in the instructional phase.

47. G.E.S. has been academically successful and maintained honor roll grades.

Based upon the foregoing Findings of Fact, the undersigned makes the following:

CONCLUSIONS OF LAW

1 . The Office of Administrative Hearings has jurisdiction over the person and subject matter of
this contested case pursuant to Chapters 115C and 150B of the North Carolina General Statutes.

2. As stated in G.S. 1 15C-106, it is the public policy of the State of North Carolina to ensure
every child a fair and full opportunity to reach his full potential.

3. G.E.S. suffers from a diffuse encephalopathy with bifrontal dysfunction associated with
medical complications at birth and likely caused by a subarachnoid hemorrhage. G.E.S. is experiencing rather
diffuse and generalized cerebral and likely cerebellar inefficiency. G.E.S. requires a multifaceted treatment
program involving both direct and consultative LD services at the Pines Elementary School, Washington
County, Plymouth, North Carolina. As a consequence of G.E.S. 's disability, he is a child with "special
needs" and entitled to special education and related services as defined in G.S. 115C-109. G.E.S. is also a
child with a disability as defined in the Individuals With Disabilities Education Act, 20 USCA 1401, et seq .

4. G.E.S. is entitled to "special education" services as that term is defined in G.S. 115C-108.

5. G.E.S. is entitled to "related services" as that term is defined in G.S. 115C-108.

6. G.E.S. in entitled to a free appropriate education as a consequence of his being defined as
a child with special needs as provided in G.S. 1 15C-1 1 1 .

7. G.E.S. is entitled to the preparation and implementation of an individualized educational
program (IEP) as defined in G.S. 1 15C-1 13(f) as a consequence of being defined as a child with special needs.

8. On or about August 14, 1990, Dr. Theodore R. Sunder, Associate Professor, Chief, Pediatric
Neurology, East Carolina University, suggested behavioral therapy.

"In addition he will require behavioral therapy, likely by an organic psychologist with
some experience in working with head injured individuals."

9. On or about January 4, 1991, Respondent classified G.E.S. as EMH. (Petitioner's Exhibit

#11)

10. On or about February 4, 1991, Mrs. S., in correspondence to Mrs. Peggy Davenport
expressed concern about her son's emotional needs:

11. A psychological evaluation was performed by Shirley P. Kuhn, MS. Ms. Kuhn notes in her
evaluation Dr. Sunder's diagnosis:

"Including speech/language, physical, and occupational therapy, as well as behavior
therapy and management, all integrated into a highly structured academic program in

1341 7:13 NORTH CAROLINA REGISTER October 1, 1992

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CONTESTED CASE DECISIONS

a self contained learning disabilities classroom setting."

However, Ms. Kuhn, in her recommendation states:

"In any case, fearing that clinical predictions for G.E.S. are fast becoming a self
fulfilling prophecy, this examiner boldly suggests that his teachers approach him without
any preconceptions as they try to determine for themselves what his learning pace can
be. There is probably nothing more to be gained by further 'specialized' evaluations (at
least not enough to outweigh what might be perceived as additional messages that
something is wrong with him), but it will be very important in the next few months to
clarify his rate of cognitive development." (emphasis added)

Her only recommendation was the administration of the WICS-R. No recommendation was made as
to the correct designation of G.E.S. from the classification as EMH; no recommendation was made as to
implementation of Dr. Sunder's diagnosis and recommendations as to behavior therapy. There was an express
recommendation that no further psychological evaluation be made of G.E.S. as this would only undermine
his self esteem and likely be a "self fulfilling prophecy." (Petitioner's Exhibit #13)

12. On or about June 4, 1991, at an IEP meeting, a recommendation was made that G.E.S.
"receive a neuropsychological". (Petitioner's Exhibit #7) As a result. Dr. Raymond F. Webster, PhD.,
NCSP, a recognized authority in the field of neuropsychology, performed a psychological evaluation. This
psychological evaluation accepted Dr. Sunder's medical diagnosis of G.E.S. and paralleled other of Dr.
Sunder's recommendations. Dr. Webster administered a battery of diagnostic tests. Based upon those
diagnostic tests, Dr. Webster outlined very specific recommendations based upon a multimodal teaching
strategy. Again, Dr. Webster noted G.E.S.'s symptoms as reported by Mrs. S. concerning stress and
behavior and also observed these in his testing of G.E.S.

"Additionally, individual counseling for him and parent effectiveness training and
counseling for parents, especially mother, are appropriate and recommended."

(Petitioner's Exhibit #12)

This was the second major recognition by a highly trained professional that stress related problems
existed. Further, Mrs. S. had stated this fact to Respondent in her correspondence of February 4, 1991.
(Petitioner's Exhibit #9)

13. G.E.S.'s School Based Committee, on or about September 5, 1991, reclassified G.E.S. as
SLD which was a change in the previous classification.

"The above decision was based on the following: neuropsychological, parent recommen-
dation, SBC recommendation."

It further states:

"Assist mother as recommended by the neuropsychological 6/20/91."

The IEP evaluation notes again low frustration tolerance and that he (G.E.S.) works slowly, he's
easily frustrated. Many of the other recommendations of Dr. Webster were approved for implementation in
the IEP. (Petitioner's Exhibit #5)

14. Again, G.E.S. was evaluated by Dr. Sunder on September 17, 1991. Dr. Sunder reports:

"Unfortunately he had an association with his significant degree of stress, primarily
manifested by late afternoon headaches."

Dr. Sunder reports from the standpoint of his headaches:

7:13 NORTH CAROLINA REGISTER October 1, 1992 1342

CONTESTED CASE DECISIONS

"I feel that these are distinctly stress related. I don't find anything to suggest significant
vascular component at this juncture. Again, I would agree with supportive psychothera-
py as outlined and recommended by the neuropsychologists would be important and
certainly beneficial in optimizing this young man's performance in the school setting.
This should be carried out at a frequency determined by the therapist, but likely would
require several times weekly at the beginning."

15. Between the time of the adoption of the IEP in September, 1992, and January 6, 1992, no
related services were provided to G.E.S. or the Petitioner concerning stress as recommended by both Dr.
Webster and Dr. Sunder.

16. A demand for those services was made by the Petitioner's attorneys on or about November
22. 1991. (Petitioner's Exhibit #1)

17. Notwithstanding the information disclosed to the Respondent in Petitioner's Exhibit #1
concerning Tideland Mental Health Center and the lack of anyone in that clinic with expertise in
neuropsychology, a recommendation was made by Respondent on January 6, 1992, that in order to "assist
Mrs. S. an appointment will be made for G.E.S. at Tideland."

18. Respondent does not deny the validity of the recommendations of Petitioner's experts,
particularly Dr. Webster. Respondent's main issue concerning the recommendation was whether or not
G.E.S. was legally entitled to the psychological services as a "related service" rendered by someone familiar
with neuropsychology.

19. Based upon the expert testimony of Dr. Webster, his report (Petitioner's Exhibit #12) and Dr.
Sunder's report (Petitioner's Exhibit #3). both professionals with impeccable credentials in their field of
expertise and as accepted by the Respondent in stipulations, it cannot be denied that G.E.S. and Mrs. S. (as
well as Mr. S.) are in need of and entitled to this counseling under applicable law. The question of the scope
and magnitude of this counseling is the main issue at the heart of this contested case hearing.

20. Under the provisions of G.S. 115C-108, the term 'related services' means... counseling
services... the term also includes... parent counseling and training and assisting parents in understanding the
special needs of their child."

21. Related services have been judicially held to include speech pathology and audiology,
psychological services, physical and occupational therapy, recreation, early identification and assessment of
disabilities in children, counseling services and medical services for diagnostic or evaluation purposes.

22. Section 1501(1) of the policy statement of the Department of Public Instruction defines 'related
services' to include "(6) parent counseling and training means assisting parents in understanding the special
needs of their child and providing parents with information about child development. (8) Psychological
services include consulting with parents, teachers and other school personnel and planning program and
services to meet the identified needs of children..." "Planning and managing a program of psychological
services including psychological counseling for children and parents."

23. Respondent is charged with the statutory duty of providing G.E.S. with related services if
Petitioner has established by the greater weight of the evidence that G.E.S.'s special education will benefit.
There has been established a sufficient causative relationship between the symptoms exhibited by G.E.S. at
home (headaches, nausea, diarrhea, etc.) and stress related to his educational environment. It is specifically
concluded that Respondent is charged with the statutory duty to provide G.E.S. with related services if
Petitioner has established through stipulation and by the greater weight of the evidence that these services will
benefit G.E.S.'s special education and give to him an opportunity to achieve his full potential commensurate
with that given other children. G.E.S. is entitled to the services of a licensed psychologist who has expertise
in organicity in order to provide psychological counseling to G.E.S. and Mrs. S. (and Mr. S.) at a frequency
to be determined by the therapist. This therapy and counseling should be limited to therapy related to coping

1343 7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

with and eliminating (to the extent possible) these symptoms because of their direct relationship to causative
variables attributed to G.E.S.'s school environment. Although G.E.S. may benefit from other psychotherapy
relating to his disability, no causative evidence has been produced which would link this need to his
educational environment. No other legally sufficient rationale can be made, based upon the Findings of Fact,
for the undersigned to conclude that any and all psychological therapy is required to be provided to G.E.S.
or his parents by Respondent.

24. The psychological services as specified above are "related services" under the term "special
education" and are to be provided to G.E.S. and his parents at no cost to them.

25. Based upon the testimony of the other witnesses who are familiar with G.E.S., particularly
his teachers, the remainder of G.E.S.'s IEP is appropriate and substantially incorporates the recommendations
of Dr. Sunder and Dr. Webster and are being commendably provided to G.E.S. 2

26. Based upon the report of Theresa Dulski (Petitioner's Exhibit #2) it is recommended that OT
therapy services to improve fine motor dexterity skills not be provided to G.E.S.

27. The IEP was appropriately implemented to meet G.E.S.'s needs.

28. Except as indicated herein no other omission or failure was found to justify a remedy to the
Petitioner.

29. Based upon the testimony of Respondent's witnesses and the Petitioner, the remainder of
G.E.S.'s IEP provides G.E.S. with a free and appropriate education through an appropriate individualized
education program pursuant to State and federal law and has not otherwise denied G.E.S. his right to a free
appropriate education by failing to provide him the necessary related services; G.E.S.'s individualized
education plan is appropriate and is being implemented to meet his needs. In fact, as evidenced by the
testimony of Respondent's witnesses and the Petitioner (and further Petitioner's own Proposed Finding of
Fact), G.E.S.'s IEP is being commendably implemented.

30. G.E.S. spends a substantial portion of his day in a LD classroom and the remaining portion
of his day in a regular classroom. Ms. Styons is G.E.S.'s LD teacher and he is benefitting academically from
the instruction being received by her. Ms. Styons employs a multimodal teaching strategy and has studied
at East Carolina University under Dr. Webster.

31 . Ms. Styons, as the learning disabilities teacher in the areas as outlined in the IEP and in other
related areas, consults on a regular basis with Ms. Alta Allen, the regular classroom teacher.

32. Based upon the testimony of Respondent's witnesses and as provided for in his IEP or
otherwise implemented, sufficient respite periods are provided to G.E.S. during the class day.

33. G.E.S. is provided for or it is implemented in his IEP, adaptive physical education. Randall
Spier implements the IEP in the area of physical education and instructs G.E.S. in adaptive PE for periods
of 30 minutes per week.

34. G.E.S.'s IEP and the implementation of the IEP call for improvement in gross motor
coordination and control. G.E.S. is receiving appropriate physical therapy in a small physical education class
and, as a consequence, he is receiving this service.

35. G.E.S.'s IEP and its implementation call for speech and language therapy and he is receiving

Particularly it was observed by the undersigned that Mrs. Styons was providing services to G.E.S. in a
highly significant way. This could also be said of the many other fine teachers and personnel associated with
G.E.S.'s IEP and its implementation.

7:13 NORTH CAROLINA REGISTER October 1, 1992 1344

CONTESTED CASE DECISIONS

the appropriate services in this area.

36. The paucity of evidence concerning the resolution of the issue concerning educational services
during the summer was insufficient notwithstanding the stipulations of record. The undersigned finds that no
conclusion may be made as to the educational services during the summer as meeting the legal standards for
related services or as required by law.

37. G.E.S. and his parents are presently receiving formal reviews in meetings with the School
Based Committee and are otherwise receiving adequate notice of G.E.S. 's progress. Therefore it cannot be
concluded that this service is in any way inadequate as presently provided.

38. Based upon the medical report of Dr. Webster and by his expert testimony, G.E.S. is in the
need of coordination between the home and school concerning his behavior program. Mrs. Styons (or
someone with her equivalent training and experience) in consultation with a psychologist with specific
expertise concerning problems associated with organicity is sufficient for this coordination.

39. Physical therapy should be integrated into his program to address his motor coordination and
control deficits. The special physical education program devised in his IEP is sufficient and meets the
requirements of law.

40. Based upon the report of Theresa Dulski and what is otherwise required by law, direct
occupational therapy services are not to be implemented.

41. G.E.S.'s need for formal education revaluation and formal reviews by school system
representatives with G.E.S. "s parents should be no more or less than the maximum required by law unless
otherwise indicated in the IEP.

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the
following:

DECISION

1 . Respondent is charged with the statutory duty to provide G.E.S. with related services in order
to give G.E.S. an opportunity to achieve his full potential commensurate with that given other children.

2. G.E.S. is entitled to the services of a licensed psychologist who has expertise in organicity
in order to provide psychological counseling to G.E.S. and Mrs. S. (and Mr. S.) at a frequency to be
determined by the therapist. This therapy and counseling should be limited to therapy related to coping with
and eliminating (to the extent possible) those symptoms related to stress created from the classroom
environment. Since these psychological services as specified are "related services" under the term "special
education" they are to be provided to G.E.S. and his parents at no cost to them.

3. There shall be implemented a behavior program between school and home for G.E.S. Mrs.
Styons (or someone with her equivalent training and experience) in consultation with a psychologist with
specific expertise concerning problems associated with organicity is sufficient for directing this coordination.

4. Except as herein ordered. Petitioner is not entitled to any other relief concerning the
educational services provided to G.E.S.

5. This cause is retained for further orders as may be necessary.

NOTICE

In order to appeal this Decision, the person seeking review must file a written notice of appeal with

1345 7:13 NORTH CAROLINA REGISTER October 1, 1992

CONTESTED CASE DECISIONS

the North Carolina Superintendent of Public Instruction. The written notice of appeal must be filed within
thirty (30) days after the person is served with a copy of this Decision. G.S. 1 15C-1 16(h) and (i).

This the 28th day of August, 1992.

Julian Mann, III

Chief Administrative Law Judge

7:13 NORTH CAROLINA REGISTER October 1, 1992 1346

NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM

1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these,
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major
department in the North Carolina executive branch of government has been assigned a title number.
Titles are fiirther broken down into chapters which shall be numerical in order. The other two,

subchapters and sections are optional subdivisions to be used by agencies when appropriate.

TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE DEPARTMENT LICENSEVG BOARDS CHAPTER

Administration

Agriculture

Auditor

Economic & Community Development

Correction

Council of State

Cultural Resources

Elections

Governor

Human Resources

1 1

Insurance

Justice

Labor

14A

Crime Control & Public Safety

15A

Environment. Health, and Natural

Resources

Public Education

Revenue

Secretary of State

19A

Transportation

Treasurer

Occupational Licensing Boards

Administrative Procedures

Communitv Colleges

Independent Agencies

State Personnel

Administrative Hearings

Architecture 2

Auctioneers 4

Barber Examiners 6

Certified Public Accountant Examiners 8

Chiropractic Examiners 10

General Contractors 12

Cosmetic Art Examiners 14

Dental Examiners 16

Dietetics/Nutrition 17

Electrical Contractors 18

Electrolysis 19

Foresters 20

Geologists 21

Hearing Aid Dealers and Fitters 22

Landscape Architects 26

Landscape Contractors 28

Marital and Family Therapy 31

Medical Examiners 32

Midwifery Joint Committee 33

Mortuary Science 34

Nursing 36

Nursing Home Administrators 37

Occupational Therapists 38

Opticians 40

Optometry 42

Osteopathic Examination & Reg. (Repealed) 44

Pharmacy 46

Physical Therapy Examiners 48
Plumbing. Heating & Fire Sprinkler Contractors 50

Podiatry Examiners 52

Practicing Counselors 53

Practicing Psychologists 54

Professional Engineers & Land Surveyors 56

Real Estate Commission 58

Refrigeration Examiners 60

Sanitarian Examiners 62

Social Work 63
Speech & Language Pathologists & Audiologists 64

Veterinary Medical Board 66

Note: Title 21 contains the chapters of the various occupational licensing boards.

1347

7:13 NORTH CAROLINA REGISTER October 1, 1992

CUMULATIVE INDEX

(April 1992 - March 1993)

Pages

Issue

1 - 105 1 April

106 - 173 2 - April

174 - 331 3 - May

332 - 400 4 - May

401 - 490 5 - June

491 - 625 6 - June

626 - 790 7 - July

791 - 902 8 - July

903 - 965 9 - August

966 - 1086 10 - August

1087 - 1154 11 - September

1 155 - 1253 12 - September

1254 - 1350 13 - October

ADMINISTRATION

Auxiliary Services, 4

Motor Fleet Management Division,

794

AGRICULTURE

Gasoline and Oil Inspection Board, 336

Pesticide Board, 1276

Plant Industry, 904

Structural Pest Control Committee, 332

Veterinary Division, 342

CULTURAL RESOURCES

U.S.S. Battleship Commission, 911

ECONOMIC AND COMMUNITY DEVELOPMENT

Banking Commission, 629
Community Assistance, 909, 968
Departmental Rules, 801

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES

Adult Health, 1199

Coastal Management, 211, 655, 1098

Departmental Rules, 826

Environmental Health, 223

Environmental Management, 190, 416, 500, 644, 830, 1013

Governor's Waste Management Board, 564, 920, 1 197

Health: Epidemiology, 140, 1212

Health: Personal Health, 1217

Health Services, 52, 659, 1174

Marine Fisheries, 530

NPDES Permits Notices, 1, 107

Radiation Protection, 136

Sedimentation Control, 920

7:13 NORTH CAROLINA REGISTER October 1, 1992

1348

CUMULATIVE INDEX

(

Vital Records. 565

Wildlife Resources Commission, 28, 133, 408, 449. 551, 921, 1299

Wildlife Resources Commission Proclamation, 176

FINAL DECISION LETTERS

Voting Rights Act, 106, 174. 406, 493, 628, 793, 966, 1090, 1275

GENERAL STATUTES

Chapter 150B, 1254

GOVERNOR/LT. GOVERNOR

Executive Orders. 401, 491, 626, 791, 903, 1087, 1155

HUMAN RESOURCES

Aging, Division of. 121, 346

Day Care Rules, 123

Economic Opportunity, 5

Facility Services, 111, 177, 496, 634, 980

Medical Assistance, 4, 415, 496, 816, 989, 1156, 1295

Mental Health, Developmental Disabilities and Substance Abuse Services, 111, 297, 409, 809, 1092, 1276

Social Services Commission. 183, 911

LNDEPENDENT AGENCIES

Housing Finance Agency. 450, 576, 928, 1219

INSURANCE

Consumer Services Division, 125, 1157

Departmental Rules, 7, 1095

Engineering and Building Codes, 19, 643

Financial Evaluation Division. 1162

Fire and Rescue Services Division, 17

Hearings Division, 124. 1096

Life and Health Division, 22, 347, 1167

Property and Casualty Division, 20

Seniors' Health Insurance Information Program, 132

JUSTICE

Alarm Systems Licensing Board, 27, 189. 643, 919

Criminal Information, 1097

General Statutes Commission, 353

Private Protective Services, 918

Sheriffs Education and Training. 990

State Bureau of Investigation, 188, 499

LICENSING BOARDS

Architecture. 1111

Certified Public Accountant Examiners, 355

Cosmetic Art Examiners, 360, 922

Dietetics/Nutrition, 923

Electrolysis Examiners, 69, 700

Medical Examiners, 1304

Nursing. 232, 700

Professional Engineers and Land Surveyors, 566

Speech and Language and Pathologists and Audiologists, 705

1349 7:13 NORTH CAROLINA REGISTER October 1, 1992

CUMULATIVE INDEX

LIST OF RULES CODIFIED

List of Rules Codified, 72, 362, 452, 584

PUBLIC EDUCATION

Departmental Rules, 1 108
Elementary and Secondary, 852, 1108

REVENUE

License and Excise Tax, 712
Motor Fuels Tax, 361

STATE PERSONNEL

Office of State Personnel, 237, 705, 1113

TAX REVIEW BOARD

Orders of Tax Review, 494

TRANSPORTATION

Highways, Division of, 228, 856, 1062, 1110
Motor Vehicles, Division of, 68, 142

7:13 NORTH CAROLINA REGISTER October 1, 1992 1350

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